LIBRARY 

OF  THE 

UNIVERSITY  OF  CALIFORNIA 


OK 


Received 
Accession  No.  fa  0  6 


THE 


USE  OF  THE  ARMY 


AID  OF  THE  CIVIL  POWER, 


G.  NORMAN  LIEBER, 

JUDGE-ADVOCATE  GENERAL, 
U.  S.  ARMY. 


WASHINGTON  : 

GOVERNMENT  PRINTING  OFFICE. 

1898. 


THE 


USE  OF  THE  ARMY 


IN 


AID  OF  THE  CIVIL  POWER 


G,  NORMAN  LIEBER, 

\UDGE-ADVOCATE  GENERAL, 
U.  S.  ARMY. 


TJNIVERSITT 


WASHINGTON: 

GOVERNMENT  PRINTING  OFFICE. 

1808. 


WAR  DEPARTMENT. 

Document  No.  G4. 
OFFICE  OF  THE  JUDGE-ADVOCATE  GENERAL. 

7  2-*  <° 


By  the  use  of  the  Army  in  aid  of  the  civil  power  is 
here  meant  its  use  under  some  power  granted  "by  the 
Constitution  of  the  United  States,  either  directly  or 
through  the  medium  of  legislation.  "War  powers," 
independent  of  the  Constitution,  whatever  they  may 
be,  and  whether  legislative  or  executive,  are  no  part 
of  this  subject. '  The  use  here  spoken  of  has  reference 
to  the  occasions  for  the  employment  of  the  Army,  that 
is,  to  the  purposes  for  which  it  may  be  used,  and  not 
to  what  it  may  do  in  carrying  out  the  use.  The  occa- 
sions had  in  view  are  those  of  resistance  to  the  law 
not  amounting  to  war,  and  the  subject  to  which  these 
observations  will  be  more  especially  addressed  is  the 
employment  of  the  Army  in  executing  the  laws  of 
the  United  States  and  in  protecting  their  instrumen- 
talities of  government  against  unlawful  interference. 

The  Army  Appropriation  Act  of  June  18,  1878,  con- 
tained the  following  provision : 

"From  and  after  the  passage  of  this  act  it  shall 
not  be  lawful  to  employ  any  part  of  the  Army  of  the 
United  States,  as  a  posse  comitatus,  or  otherwise,  for 
the  purpose  of  executing  the  laws,  except  in  such  cases 
and  under  such  circumstances  as  such  employment  of 

1  The  North  American  Review  for  November,  1896,  publishes 
the  writer's  views  on  what  constitiites  the  justification  of  the 
war  power  known  as  "martial  law."  The  position  is  there  taken 
that  martial  law  is  defensible  only  as  an  exercise  of  executive 
military  power  founded  in  actual  necessity,  thus  disagreeing 
with  the  view,  sometimes  advanced,  that  it  is  within  the  power 
of  Congress  to  authorize  it. 

(3) 


said  force  may  be  expressly  authorized  by  the  Consti- 
tution or  by  act  of  Congress ;  and  no  money  appro- 
priated by  this  act  shall  be  used  to  pay  any  of  the 
expenses  incurred  in  the  employment  of  any  troops  in 
violation  of  this  section  and  any  person  wilfully  vio- 
lating the  provisions  of  this  section  shall  be  deemed 
guilty  of  a  misdemeanor  and  on  conviction  thereof 
shall  be  punished  by  a  fine  not  exceeding  ten  thousand 
dollars  or  imprisonment  not  exceeding  two  years  or 
by  both  such  fine  and  imprisonment." 

From  June  30th  until  November  21st,  1 877,  the  Army 
of  the  United  States  was  maintained  without  any  ap- 
propriation, the  two  Houses  of  Congress  having  failed 
to  agree.  It  would  be  foreign  to  the  purpose  of  these 
remarks  to  comment  on  this  significant  fact  in  our 
constitutional  history,  but  the  proceedings  in  Con- 
gress which  led  to  the  failure  of  the  Army  Appro- 
priation Act  at  the  second  session  of  the  Forty-fourth 
Congress,  and  those  which  resulted  in  the  above  legis- 
lation, are  part  of  the  history  of  the  subject  under 
consideration. 

On  the  22d  of  January,  1877,  the  President,  in  re- 
sponse to  a  resolution  of  the  House  of  Representatives, 
made  the  following  communication : 

"To  the  HOUSE  OF  REPRESENTATIVES: 

"On  the  9th  day  of  December,  1876,  the  following 
resolution  of  the  House  of  Representatives  was  re- 
ceived, viz: 

"  ' Resolved,  That  the  President  be  requested,  if  not 
incompatible  with  the  public  interest,  to  transmit  to 
this  House  copies  of  any  and  all  orders  or  directions 
emanating  from  him  or  from  either  of  the  Executive 
Departments  of  the  Government  to  any  military  com- 
mander or  civil  officer,  with  reference  to  the  service  of 


the  Army,  or  any  portion  thereof,  in  the  States  of 
Virginia,  South  Carolina,  Louisiana,  and  Florida, 
since  the  1st  of  August  last,  together  with  reports,  by 
telegraph  or  otherwise,  from  either  or  any  of  said 
military  commanders  or  civil  officers.' 

"It  was  immediately,  or  soon  thereafter,  referred 
to  the  Secretary  of  War  and  the  Attorney  General, 
the  custodians  of  all  retained  copies  of  'orders  or 
directions'  given  by  the  Executive  Department  of  the 
Government  covered  by  the  above  inquiry,  together 
with  all  information  upon  which  such  'orders  or 
directions'  were  given. 

' '  The  information,  it  will  be  observed,  is  volumi- 
nous, and,  with  the  limited  clerical  force  in  the 
Department  of  Justice,  has  consumed  the  time  up  to 
the  present.  Many  of  the  communications  accom- 
panying this  have  been  already  made  public  in  con- 
nection with  messages  heretofore  sent  to  Congress. 
This  class  of  information  includes  the  important  doc- 
uments received  from  the  governor  of  South  Carolina, 
and  sent  to  Congress  with  my  message  on  the  subject 
of  the  Hamburgh  massacre ;  also  the  documents  ac- 
companying my  response  to  the  resolution  of  the 
House  of  Representatives  in  regard  to  the  soldiers 
stationed  at  Petersburg!!. 

"There  have  also  come  to  me  and  to  the  Department 
of  Justice,  from  time  to  time,  other  earnest  written 
communications  from  persons  holding  public  trusts 
and  from  others  residing  in  the  South,  some  of  which 
I  append  hereto  as  bearing  upon  the  precarious  condi- 
tion of  the  public  peace  in  those  States.  These  com- 
munications I  have  reason  to  regard  as  made  by 
respectable  and  responsible  men.  Many  of  them  dep- 
recate the  publication  of  their  names  as  involving 
danger  to  them  personally. 

"The  reports  heretofore  made  by  committees  of 
Congress  of  the  results  of  their  inquiries  in  Mississippi 
and  in  Louisiana,  and  the  newspapers  of  several  States 
recommending  'the  Mississippi  plan,'  have  also  fur- 
nished important  data  for  estimating  the  danger  to 
the  public  peace  and  order  in  those  States. 


6 

"It  is  enough  to  say  that  these  different  kinds  and 
sources  of  evidence  have  left  no  doubt  whatever  in 
my  mind  that  intimidation  has  been  used,  and  actual 
violence,  to  an  extent  requiring  the  aid  of  the  United 
States  Government,  where  it  was  practicable  to  fur- 
nish such  aid,  in  South  Carolina,  in  Florida,  and  in 
Louisiana,  as  well  as  in  Mississippi,  in  Alabama,  and 
in  Georgia. 

"The  troops  of  the  United  States  have  been  but 
sparingly  used,  and  in  no  case  so  as  to  interfere  with 
the  free  exercise  of  the  right  of  suffrage.  Very  few 
troops  were  available  for  the  purpose  of  preventing  or 
suppressing  the  violence  and  intimidation  existing  in 
the  States  above  named.  In  no  case  except  that  of 
South  Carolina  was  the  number  of  soldiers  in  any 
State  increased  in  anticipation  of  the  election,  saving 
that  twenty-four  men  and  an  officer  were  sent  from 
Fort  Foote  to  Petersburg!!,  Va.,  where  disturbances 
were  threatened  prior  to  the  election. 

"No  troops  were  stationed  at  the  voting-places.  In 
Florida  and  in  Louisiana,  respectively,  the  small 
number  of  soldiers  already  in  the  said  States  were 
stationed  at  such  points  in  each  State  as  were  most 
threatened  with  violence,  where  they  might  be  avail- 
able as  a  posse  for  the  officer  whose  duty  it  was  to 
preserve  the  peace  and  prevent  intimidation  of  voters. 
Such  a  disposition  of  the  troops  seemed  to  me  reason- 
able, and  justified  by  law  and  precedent,  while  its 
omission  would  have  been  inconsistent  with  the  con- 
stitutional duty  of  the  President  of  the  United  States 
'to  take  care  that  the  laws  be  faithfully  executed.' 
The  statute  expressly  forbids  the  bringing  of  troops 
to  the  polls,  l  except  where  it  is  necessary  to  keep  the 
peace,'  implying  that  to  keep  the  peace  it  may  be 
done.  But  this  even,  so  far  as  I  am  advised,  has  not 
in  any  case  been  done.  The  stationing  of  a  company 
or  part  of  a  company  in  the  vicinity,  where  they 
would  be  available  to  prevent  riot,  has  been  the  only 
use  made  of  troops  prior  to  and  at  the  time  of  the 
elections.  Where  so  stationed,  they  could  be  called,  in 


an  emergency  requiring  it,  by  a  marshal  or  deputy 
marshal  as  a  posse  to  aid  in  suppressing  unlawful  vio- 
lence. The  evidence  which  has  come  to  me  has  left 
me  no  ground  to  doubt  that  if  there  had  been  more 
military  force  available,  it  would  have  been  my  duty 
to  have  disposed  of  it  in  several  States  with  a  view  to 
the  prevention  of  the  violence  and  intimidation  which 
have  undoubtedly  contributed  to  the  defeat  of  the 
election  law  in  Mississippi,  Alabama,  and  Georgia,  as 
well  as  in  South  Carolina,  Louisiana,  and  Florida. 

"  By  Article  IV,  section  4,  of  the  Constitution,  '  The 
United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government,  and  on  appli- 
cation of  the  legislature,  or  of  the  executive  (when 
the  legislature  can  not  be  convened),  shall  protect  each 
of  them  against  domestic  violence.' 

"By  act  of  Congress  (Rev.  Stat.,  U.  S.,  sec.  1034, 
1035)  the  President,  in  case  of  '  insurrection  in  any 
State,'  or  of  'unlawful  obstruction  to  the  enforcement 
of  the  laws  of  the  United  States  by  the  ordinary  course 
of  judicial  proceedings,' or  whenever  '  domestic  vio- 
lence in  any  State  so  obstructs  the  execution  of  the 
laws  thereof,  and  of  the  United  States,  as  to  deprive 
any  portion  of  the  people  of  sucli  State '  of  their  civil 
or  political  rights,  is  authorized  to  employ  such  parts 
of  the  land  and  naval  forces  as  he  may  deem  necessary 
to  enforce  the  execution  of  the  laws  and  preserve  the 
peace,  and  sustain  the  authority  of  the  State  and  of 
the  United  States.  Acting  under  this  title  (69)  of  the 
Revised  Statutes,  United  States,  I  accompanied  the 
sending  of  troops  to  South  Carolina  with  a  proclama- 
tion such  as  is  therein  prescribed. 

"The  President  is  also  authorized  by  act  of  Con- 
gress '  to  employ  such  part  of  the  land  or  naval  forces 
of  the  United  States '  *  *  *  '  as  shall  be  necessary 
to  prevent  the  violation  and  to  enforce  the  due  execu- 
tion of  the  provisions '  of  title  24  of  the  Revised  Stat- 
utes of  the  United  States  for  the  protection  of  the  civil 
rights  of  citizens,  among  which  is  the  provision 
against  conspiracies  '  to  prevent  by  force,  intimidation, 


8 

or  threat,  any  citizen  who  is  lawfully  entitled  to  vote, 
from  giving  his  support  or  advocacy  in  a  legal  man- 
ner toward  or  in  favor  of  the  election  of  any  lawfully 
qualified  person  as  an  elector  for  President,  or  Vice- 
President,  or  as  a  member  of  Congress  of  the  United 
States.'  (Rev.  Stat.,  U.  S.,  1989.) 

"In  cases  falling  under  this  title,  I  have  not  consid- 
ered it  necessary  to  issue  a  proclamation  to  preclude 
or  accompany  the  employment  of  such  part  of  the 
Army  as  seemed  to  be  necessary. 

"In  case  of  insurrection  against  a  State  government, 
or  against  the  Government  of  the  United  States,  a 
proclamation  is  appropriate ;  but  in  keeping  the  peace 
of  the  United  States  at  an  election  at  which  members 
of  Congress  are  elected,  no  such  call  from  the  State  or 
proclamation  by  the  President  is  prescribed  by  statute 
or  required  by  precedent. 

"In  the  case  of  South  Carolina,  insurrection  and 
domestic  violence  against  the  State  government  were 
clearly  shown,  and  the  application  of  the  governor 
founded  thereon  was  duly  presented,  and  I  could  not 
deny  his  constitutional  request  without  abandoning 
my  duty  as  the  Executive  of  the  National  Government. 

"The  companies  stationed  in  the  other  States  have 
been  employed  to  secure  the  better  execution  of  the 
laws  of  the  United  States  and  to  preserve  the  peace  of 
the  United  States. 

1  'After  the  election  had  been  had,  and  where  violence 
was  apprehended  by  which  the  returns  from  the  coun- 
ties and  precincts  might  be  destroyed,  troops  were 
ordered  to  the  State  of  Florida,  and  those  already  in 
Louisiana  were  ordered  to  the  points  in  greatest  dan- 
ger of  violence. 

"I  have  not  employed  troops  on  slight  occasions, 
nor  in  any  case  where  it  has  not  been  necessary  to  the 
enforcement  of  the  laws  of  the  United  States.  In 
this  I  have  been  guided  by  the  Constitution  and  the 
laws  which  have  been  enacted  and  the  precedents  which 
have  been  formed  under  it. 

"It  has  been  necessary  to  employ  troops  occasionally 
to  overcome  resistance  to  the  internal-revenue  laws, 


9 

from  the  time  of  the  resistance  to  the  collection  of  the 
whisky  tax  in  Pennsylvania,  under  Washington,  to 
the  present  time. 

"In  1854,  when  it  was  apprehended  that  resistance 
would  be  made  in  Boston  to  the  seizure  and  return  to 
his  master  of  a  fugitive  slave,  the  troops  there  sta- 
tioned were  employed  to  enforce  the  master's  right 
under  the  Constitution,  and  troops  stationed  at  New 
York  were  ordered  to  be  in  readiness  to  go  to  Boston 
if  it  should  prove  to  be  necessary. 

"In  1859,  when  John  Brown  with  a  small  number 
of  men  made  his  attack  upon  Harper's  Ferry,  the 
President  ordered  United  States  troops  to  assist  in  the 
apprehension  and  suppression  of  him  and  his  party, 
without  a  formal  call  of  the  legislature  or  governor  of 
Virginia,  and  without  proclamation  of  the  President. 

"Without  citing  further  instances,  in  which  the 
Executive  has  exercised  his  power  as  commander  of 
the  Army  and  Navy  to  prevent  or  suppress  resistance 
to  the  laws  of  the  United  States,  or  where  he  has 
exercised  like  authority  in  obedience  to  a  call  from  a 
State  to  suppress  insurrection,  I  desire  to  assure  both 
Congress  and  the  country  that  it  has  been  my  purpose 
to  administer  the  executive  powers  of  the  Government 
fairly,  and  in  no  instance  to  disregard  or  transcend 
the  limits  of  the  Constitution. 

"U.  S.  GRANT." 

The  bill  passed  by  the  House  of  Representatives  at 
the  second  session  of  the  Forty-fourth  Congress  pro- 
posed to  reduce  the  numerical  strength  of  the  Army 
and  to  prevent  its  use  in  support  of  the  claims,  or  pre- 
tended claims,  of  any  State  government  or  officer, 
until  such  government  should  be  duly  recognized  by 
Congress.  The  reason  assigned  for  this  was  the 
improper  use  of  the  Army  in  the  Southern  States. 
Thus,  Mr.  J.  D.  C.  Atkins,  a  member  from  Tennessee, 
said: 

"Had  the  people  been  allowed  without  Federal 
coercion  to  manage  their  own  affairs  since  the  war, 


10 

they  would  have  done  so  much  more  justly  to  all  con- 
cerned and  with  far  greater  satisfaction  to  a  very  large 
majority  of  the  people  even  of  the  Northern  States. 

"The  disrupted  condition  of  society  which  the  war 
left  among  other  evils  as  a  heritage  to  the  South,  and 
which  almost  always  follows  civil  wars  from  necessity, 
afforded  a  pretext  for  the  use  of  the  Army  in  those 
States.     And  as  the  dominant  party  determined  to 
tear  down  the  old  State  governments  and  also  the  new 
ones  which  were  set  up  by  President  Johnson  and 
enter  upon  its  famous  and  ill-advised  reconstruction 
policy — and  I  only  speak  of  it  now  for  the  purpose  of 
a  historical  illustration — and  to  do  this  were  compelled 
to  inaugurate  the  rotten-borough  or  carpet-bag  system 
of  representation  and  government,  which  required,  or 
they  supposed  it  did,  the  presence  of  the  Army  to 
make  it  successful,  time,  partial  success,  and  habit 
have  rendered  the  use  of  the  Army  in  the  Southern 
States  a  seeming  necessity  to  the  ruling  authorities  at 
Washington.     It  is  to  this  use  of  the  Army  that  I 
bject.     It  is  degrading  to  the  dignity  of  an  American 
soldier  to  make  a  policeman  of  him ;  it  is  insulting  to 
lis  chivalry  and  patriotism,  it  is  dwarfing  his  noble 
profession  to  the  ignoble  level  of  a  Turkish  Janizary, 
ho  never  tasted  the  sweet  waters  of  liberty,  but  was 
>orn  and  bred  beneath  the  frowning  shadows  of  des- 
3otism  and  thinks  it  an  honor  to  lick  the  hand  of  his 
master,  or  but  touch  the  hem  of  his  garment,  or  die 
?or  his  defense. 

; '  American  soldiers  policemen !  Insult  if  true,  and 
slander  if  pretended  to  cover  up  the  tyrannical  and 
unconstitutional  use  of  the  Army  by  protecting  and 
keeping  in  power  tyrants  whom  the  people  have  not 
elected ;  and  but  for  Federal  military  protection  their 
governments  would  fall  at  the  first  breath  of  popular 
expression.  The  hollow  insincerity  and  circumlocu- 
tion which  have  attended  every  step  of  the  unconsti- 
tutional use  of  the  United  States  Army  deserves  the 
scorching  denunciation  of  every  true  soldier  and  of 
every  lover  of  his  country  and  of  its  Constitution. 


11 

' '  The  process  has  been  to  first  stifle  the  lawful  will 
of  the  people  and  set  up  in  power  these  minions  of 
despotism.  This  has  been  done  by  driving  at  the 
point  of  the  bayonet  the  legally  elected  legislators  and 
officers  of  those  States  from  power.  United  States 
district  judges  have  been  invoked  to  violate  the  law 
and  issue  orders  wholly  illegal  and  unconstitutional, 
under  which  pretended  judicial  authority  these  unpar- 
donable outrages  upon  civil  liberty  have  been  com- 
mitted. In  this  manner  these  pretenders  becoming 
the  de  facto  governments,  the  President  then  virtu- 
ously and  patriotically  responds  to  their  call  for  troops 
to  protect  them  in  their  infamous  assumption  of  au- 
thority. When  this  point  is  reached  the  law-abiding 
Executive,  full  of  devotion  to  the  Constitution  and 
with  a  heart  always  yearning  for  peace,  panoplied 
with  magisterial  power,  recurs  to  the  fourth  section 
of  the  fourth  article  of  the  Constitution  with  infinite 
satisfaction,  and  forthwith  military  aid  is  afforded 
the  men  whom  he,  in  violation  of  the  Constitution, 
first  created  with  his  own  usurping  hand.  Such  has 
been  the  process. 

' '  The  last  section  of  this  bill  seems  to  me  to  be  a 
very  salutary  one.  It  provides  that  no  part  of  the 
money  appropriated  by  it  shall  be  used  in  any  State 
to  maintain  the  political  power  of  any  State  govern- 
ment, but  to  leave  the  people  of  a  State  perfectly  free 
to  regulate  their  own  affairs  in  their  own  way,  sub- 
ject to  the  Constitution  of  the  United  States." 

A  part  of  the  remarks  of  another  member,  Mr.  H.  B. 
Banning,  of  Ohio,  who  also  discussed  the  subject  at 
considerable  length,  is  given  in  Appendix  A,  under  the 
heading,  used  by  him,  of  "  The  Object  of  Our  Army." 

And  when  the  bill  was  before  the  Senate  Mr.  Bay- 
ard said : 

"It  is  not  merely  the  cost  of  the  Army;  it  is  the 
question  of  the  employment  of  the  Army.  That  is  the 
cause  of  the  deep  feeling  which  pervades  the  people 


12 

of  tliis  country  to-day,  and  which  forms  the  chief  dif- 
ference between  the  two  Houses  of  Congress  in  respect 
to  the  present  bill.  It  is  not  worth  while  to  attempt 
to  disguise  it;  the  fact  is  that  a  widespread  belief 
exists  that  the  Army  of  the  country  has  been  em- 
ployed and  is  still  being  used  for  purposes  dangerous 
to  the  liberties  of  the  country.  That  forms  the  objec- 
tion to  the  increase  of  the  military  establishment  and 
forms  the  reasons  for  the  reduction  proposed  by  the 
Representatives  of  the  people.  I  only  speak  of  that 
which  we  all  know,  which  the  whole  country  knows, 
of  the  improper  uses  to  which  the  Army  has  been  put 
in  certain  States  of  the  Union  during  the  last  few 
years. 

"It  is  now  apparent  that  the  outgoing  administra- 
tion tardily  admit  this  policy  in  the  use  of  the  Army 
to  have  been  a  serious  mistake  and  it  seems  are  taking 
steps  to  abandon  it.  We  hear  something  of  a  similar 
suggestion,  a  faint  adumbration  of  opinion,  from  the 
incoming  administration  that  they  are  in  accord  with 
these  last  expressions  of  opinion  on  the  part  of  the 
present  administration.  I  sincerely  hope  this  may  be 
so.  In  my  judgment  it  would  have  been  wiser  had 
the  House  of  Representatives  moved  directly,  not  by 
way  of  lessening  appropriations,  but  directly,  for  the 
repeal  of  all  those  war  measures  authorizing  the  use 
of  the  Army  in  the  several  States  which  have  found 
place  upon  our  statute  books  in  the  last  fifteen  years. 
The  use  of  military  force  of  the  nation  for  the  execu- 
tion of  the  laws  should  certainly  be  the  very  last 
resort,  and  not,  as  of  late  years,  the  very  first.  I  hope 
the  day  is  near  at  hand  when  we  shall  repeal  all  this 
military  legislation  which  has  sprung  up  under  a  semi- 
revolutionary  condition  of  affairs,  and  permit  us  to 
return  where  the  Constitution  intended  our  adminis- 
tration of  government  should  be  restricted,  only  to 
enforce  laws  by  the  military  power  as  a  last  resort, 
and  even  when  the  military  power  was  called  in  in 
aid  of  the  civil  power  it  was  to  be  the  militia  of  the 
States,  and  not  the  Army  of  the  nation. 


13 

"After  all,  the  cure  for  such  evils  must  be  in  the 
public  opinion  of  an  intelligent  and  courageous  people, 
and  that  public  opinion  will  practically  enforce  itself 
upon  the  exigencies  of  the  occasion.  We  know  there 
were  emergencies,  ten  or  twelve  years  ago,  which, 
thank  heaven,  no  longer  exist,  and  there  can  be  no 
doubt  that  laws  for  which  there  was  a  pretext  or  a 
real  cause  at  that  time  are  no  longer  the  meet  and 
proper  laws  for  a  peace  establishment.  It  is  not  the 
size  of  the  Army,  it  is  the  use  to  which  the  Army  is 
applied ;  it  is  the  extraordinary  laws  under  which  the 
Army  can  be  unjustly  used  and  has  been  used.  It  is 
the  repeal  of  those  laws  that  I  seek,  in  order  that  the 
country  may  be  put  in  statu  quo  ante  bellum.  It  is 
that  the  use  of  the  military  as  an  aid  to  civil  power 
should  be  the  very  last  resort  in  a  government  of  laws, 
and  that,  under  our  system,  where  the  laws  are  to  be 
enforced  in  aid  of  the  State,  the  State  militia,  and  not 
the  Army  of  the  United  States,  should  be  called  upon." 

The  Senate  passed  a  substitute  for  the  House  bill, 
leaving  the  Army  on  its  existing  footing,  and  omitting 
the  provision  restricting  its  use.  The  House  there- 
upon refused  to  concur  in  the  amendments,  and  the 
bill  failed  to  become  a  law ;  the  Army  Appropriation 
Act  for  the  fiscal  year  ending  June  30th,  1878,  not 
being  passed  until  November  21st,  1877. 

Similar  debates  were  had  the  next  year.  Mr.  Wm. 
Kimmel,  a  member  from  Maryland,  then  very  fully 
discussed  the  subject  of  the  employment  of  the  Army 
to  execute  the  laws,  and  offered  the  following  as  an 
amendment  to  the  Army  Appropriation  Act:  "Pro- 
vided, That  from  and  after  the  passage  of  this  act  it 
shall  not  be  lawful  to  use  any  part  of  the  land  or  naval 
forces  of  the  United  States  to  execute  the  laws  either 
as  a  posse  comitatus  or  otherwise,  except  in  such  cases 
as  may  be  expressly  authorized  by  act  of  Congress  "— 


14 

language  substantially  the  same  as  that  finally  en- 
acted, except  in  one  important  particular,  namely, 
the  recognition  by  the  final  enactment  of  the  fact  that 
there  is  self-acting  authority  in  the  Constitution  for 
the  employment  of  the  Army.  This  clause  received 
earnest  consideration  in  the  Senate,  where  it  was 
amended  so  as  to  contain  such  recognition.  "As  a 
matter  of  course,"  said  Mr.  Wiiidom,  "you  can  not 
limit  the  power  of  the  President  as  authorized  and 
granted  by  the  Constitution." 

The  debate  was  an  interesting  one,  but  too  long  to  fol- 
low in  detail. *  An  attempt  was  made  to  strike  out  the 
word  "expressly,"  but  that  failed.  But,  manifestly, 
the  clause,  as  enacted,  recognizes  the  Constitution  as 
a  direct  source  of  authority  for  the  employment  of 
the  Army.  This  is  a  very  important  consideration  in 
the  construction  of  the  legislation.  And  another  mat- 
ter of  great  importance  is  also  to  be  observed  with 
reference  to  it.  The  enactment  prescribes  that  it 
shall  be  unlawful  to  employ  any  part  of  the  Army  as 
a  posse  comitatus,  or  otherwise,  for  the  purpose  of 
executing  the  laws,  except  when  it  is  expressly  author- 
ized by  the  Constitution  or  by  act  of  Congress.  Now, 
it  is  evident  that  the  word  ' '  expressly  "  can  not  be 
construed  as  placing  a  restriction  on  any  constitu- 
tional power.  If  authority  so  to  use  the  Army  is 
included  in  a  constitutional  power,  although  it  be  not 

1  When  the  bill  was  reported  from  the  conference  committee, 
Mr.  Hewitt,  of  New  York,  who  had  charge  of  it,  said : 

"Thus  have  we  this  day  secured  to  the  people  of  this  country 
the  same  great  protection  against  a  standing  army  which  cost  a 
struggle  of  two  hundred  years  for  the  Commons  of  England  to 
secure  for  the  British  people. " 

A  strong  expression  of  the  feeling  existing  at  that  time. 


15 

expressly  named,  it  can  not,  of  course,  be  taken  away 
by  legislation.1     So  that,  so  far  as  any  such  constitu- 

1  Ex- Attorney  General  Miller,  in  a  letter  to  Attorney  General 
Olney,  dated  July  11,  1894,  said: 

' '  Without  assuming  that  what  I  may  say  or  think  is  of  any 
special  value,  I  beg  to  say  that  what  you  have  done  and  what 
you  have  said,  so  far  as  the  same  has  been  brought  to  my  atten- 
tion, in  connection  with  the  current  strike  and  labor  troubles, 
has  my  cordial  commendation  and  is,  as  I  think,  entitled  to  the 
approval  of  all  good  citizens.  That  the  President  has  the  author- 
ity and  that  it  is  his  duty  to  use  the  whole  power  of  the  Govern- 
ment for  the  enforcement  of  the  laws  of  the  United  States  seems 
to  me  to  be  axiomatic.  It  is  made  his  duty  to  take  care  that  the 
laws  be  faithfully  executed.  He  is  made  Commander-in-chief  of 
the  Army  and  Navy.  In  my  judgment,  the  power  thus  conferred 
is  given  in  order  that  he  may  execute  the  duty  thus  imposed. 
For  this  reason,  I  have  always  been  of  the  opinion,  and  so  advised 
President  Harrison,  that  the  posse  comitatus  statute,  in  so  far  as 
it  attempted  to  restrict  the  President  in  using  the  Army  for  the 
enforcement  of  the  laws,  was  invalid,  because  beyond  the  power 
of  Congress ;  that  it  was  no  more  competent  by  a  statute  to  limit 
the  power  of  the  President,  as  Comniander-in-Chief ,  to  use  the 
Army  for  the  enforcement  of  the  laws  than  it  is  competent  to 
limit  by  statute  the  exercise  of  the  pardoning  or  appointing 
power.  Holding  these  views,  I  repeat  that  I  have  been  gratified 
at  the  decision  and  vigor  with  which  the  President's  power  as 
Comuiander-in-Chief  has  been  exercised,  as  I  think  I  may  justly 
assume,  under  your  advice."  (H.  R.  Doc.  9,  Part  2,  54th  Cong., 
2dsess.,  p.  108.) 

Pomeroy  divides  the  executive  attributes  and  functions  under 
the  Constitution  into  three  classes,  viz :  First,  those  which  are 
completely  conferred  by  the  terms  of  the  organic  law ;  secondly, 
thost-  which  depend  upon  some  prior  statute  of  Congress  for  the 
opportunities  and  occasions  upon  which  they  may  be  exercised; 
and,  thirdly,  those  which  depend  upon  some  prior  laws  of  Con- 
gress, not  only  for  the  opportunities  and  occasions  for  their  exer- 
cise, but  for  their  number,  character,  and  scope.  And  he  says : 
' '  So  far  as  the  President  has  executive  functions  directly  con- 
ferred upon  him,  he  is  independent  of  Congress.  It  was  never 
intended  that  the  legislature  should  draw  to  itself  the  duty  of 
administering  the  laws  which  it  makes.  There  is  danger,  it  can 
not  be  doubted,  lest  the  Congress  should  trench  upon  the  attri- 
butes of  the  Executive.  This  is  not  done  by  interfering  with  the 
class  of  powers  first  above  stated  (sees.  635,  636).  The  subject- 
matter  of  these  powers  lies  so  plainly  beyond  the  sphere  of  the 
legislature,  that  any  assertion  of  jurisdiction  over  them  is  hardly 
to  be  anticipated.  "  The  tendency,  if  it  exist  at  all,  is  to  control 


16 

tional  power  is  concerned,  the  clause  must  be  read  as 
though  the  word  "expressly"  were  omitted.  Nor, 
indeed,  would  the  enactment  qualify  future  legisla- 
tion, if  it  should  be  manifest  that  the  intention  of  the 
later  legislation  is  to  confer  the  authority.  But  the 
intention  would  have  to  be  very  evident,  because  the 
presumption  would  be  that  the  later  legislation  is 
intended  to  be  controlled  by  the  earlier. 

Among  the  acts  of  Congress  regarded  as  expressly 
authorizing  the  employment  of  the  Army  in  executing 
the  laws,  was  the  act  of  February  25,  18G5,  embodied 
in  section  2002  of  the  Revised  Statutes,  forbidding  the 
use  of  troops  at  any  place  in  a  State  where  an  election 
should  be  held,  unless  it  should  be  necessary  ' '  to  repel 
the  armed  enemies  of  the  United  States,  or  to  keep  the 
peace  at  the  polls."  In  the  Army  Appropriation  Act 
of  June  23,  1879,  it  was  prescribed  that  no  money 
appropriated  by  the  act  should  be  used  ' '  for  the  sub- 
sistence, equipment,  transportation,  or  compensation 
of  any  portion  of  the  Army  of  the  United  States,  to 
be  used  as  a  police  force  to  keep  the  peace  at  the  polls 
at  any  election  held  within  any  State."  And  the 
Army  Appropriation  Act  of  the  following  year  con- 
tained a  similar  provision,  with  a  proviso  to  the  effect 
that  nothing  in  it  should  be  construed  to  prevent  the 
use  of  troops  "to  protect  against  domestic  violence  in 

the  President  in  the  exercise  of  his  functions  of  the  second  class 
(sec.  637) ;  or  to  commit  those  of  the  third  class  (sec.  638)  to  sub- 
ordinates, and  to  limit  and  restrain  the  President  in  any  practical 
exercise  over  those  subordinates,  of  his  power  to  '  take  care  that 
the  laws  be  faithfully  executed. '  I  need  hardly  say  that  such 
legislation  is  opposed  to  the  spirit  of  the  organic  law ;  and  if  it 
became  general,  would  break  down  the  independence  of  the 
Executive,  and  practically  reduce  the  Government  to  a  single 
political  branch. "  (Pomeroy's  Constitutional  Law,  537,  et  seq. ) 


17 

each  of  the  States  on  application  of  the  legislature 
thereof  or  of  the  executive  when  the  legislature  can 
not  be  convened."  This  legislation  was  adopted  in 
view  of  flie  existing  law,  authorizing  the  use  of  troops 
to  keep  the  peace  at  the  polls.1  The  latter  was  ex- 
pressly repealed  February  8th,  1894. 

The  use  of  the  Army  as  a, posse  comitatus  has  un- 
doubtedly been,  for  the  present,  done  away  with  by 
the  legislation  of  1878.  The  Constitution  does  not 
authorize  its  use  in  this  way,  and  there  is  no  act  of 
Congress  expressly  authorizing  it.2  Formerly  it  was 
regarded  as  entirely  legal  that  it  should  be  so  used. 
"The posse  comitatus"  said  Attorney  General  Cash- 
ing, ' ;  comprises  every  person  in  the  district  or  county 
above  the  age  of  fifteen  years,  whatever  may  be  their 
occupation,  whether  civilians  or  not;  and  including 
the  military  of  all  denominations,  militia,  soldiers, 
marines,  all  of  whom  are  alike  bound  to  obey  the  com- 
mands of  a  sheriff  or  marshal.  The  fact  that  they  are 
organized  as  military  bodies,  under  the  immediate 
command  of  their  own  officers,  does  not  in  any  wise 

1  See  President  Hayes's  messages  of  April  29,  1879,  in  regard  to 
the  Army  Appropriation  Act.  and  of  May  12,  1879,  in  regard  to  a 
bill  "to  prohibit  military  interference  at  the  polls." 

-By  section  1984,  Revised  Statutes,  commissioners  charged 
with  certain  duties  under  the  Civil  Rights  legislation  are  empow- 
ered ' '  to  summon  and  call  to  their  aid  the  bystanders  or  posse 
comitatus  of  the  proper  county,  or  such  portion  of  the  land  or 
naval  forces  of  the  United  States,  or  of  the  militia,  as  may  be 
necessary  to  the  performance  of  the  duty  with  which  they  are 
charged.*"  It  will  be  noticed  that  the  land  and  naval  forces  are 
here  spoken  of  as  quite  distinct  from  the  posse  comitatus.  It  is 
also  to  be  noticed  that  the  occasions  for  the  use  of  troops  under 
this  section  have  been  greatly  reduced  by  the  repeal  of  the  pro- 
visions of  the  Revised  Statutes  relating  to^crimes  against  the  elec- 
tive franchise.  And  in  no  case  has  the  commissioner  a  direct 
control  over  the  troops.  This  would  be  unconstitutional. 

16796 2 


18 

affect  their  legal  character.  They  are  still  the  posse 
comitatus.  (XXI  Parl.  Hist.,  pp.  672,  688,  per  Lord 
Mansfield.)"1  It  is  to  be  noticed  that  Mr.  Gushing 
held  that  the  military  forces  were  bound  to  obey  the 
commands  of  the  sheriff,  as  well  as  those  of  the  mar- 
shal, while  Attorney  General  Devens  seems  to  have 
been  of  the  opinion  that  even  the  marshal  had  the 
right  to  summon  them  as  a  posse  comitatus  only  when 
they  could  be  spared.3  Having  in  mind  the  independ- 
ence, and  freedom  from  interference  by  the  States,  of 
the  instrumentalities  of  the  Government  of  the  United 
States,  it  would  appear  that  the  Army  could  never 
have  been  subject  to  the  summons  of  the  sheriff.  But 
in  view  of  the  act  of  Congress  of  1878,  this  question  is 
not  now  of  any  practical  importance. 

Called  forth  by  the  use  of  the  Army  in  the  political 
affairs  of  the  Southern  States,  the  legislation  of  1878 
was  given  a  very  general  effect,  and  entirely  abolished 
its  use  as  a  posse  comitatus — a  very  desirable  result, 
it  is  believed.  Further  than  this,  it  requires  that 
when  authority  to  use  the  Army  in  the  execution  of 
the  laws  is  given  by  statute  it  shall  be  done  in  express 
terms.  Legislation  of  this  kind  is  found  in  an  act  of 
Congress  of  March  3d,  1807,  now  covered  by  the  last 
clause  of  section  5297  of  the  Revised  Statutes,  author- 
izing the  President,  on  application  by  the  legislature, 
or  governor  if  the  legislature  can  not  be  convened,  to 
use  the  land  and  naval  forces  to  suppress  an  insurrec- 
tion in  any  State  against  its  government. 

J6  Opin.  Atty.  Gen.,  473.  See  also  16  id.,  163;  and  the  instruc- 
tions of  Attorneys  General  Evarts  and  Taft  to  United  States  mar- 
shals, of  date  August  20th,  1868,  and  September  7th,  1876,  respect- 
ively. 

2 16  Opin.  Atty.  Gen.,  163. 


19 

The  act  of  1807  provided:  "That  in  all  cases  of 
insurrection,  or  obstruction  to  the  laws,  either  of  the 
United  States,  or  of  any  individual  State  or  Territory, 
where  it 'is  lawful  for  the  President  of  the  United 
States  to  call  forth  the  militia  for  the  purpose  of 
suppressing  such  insurrection,  or  of  causing  the  laws 
to  be  duly  executed,  it  shall  be  lawful  for  him  to 
employ,  for  the  same  purposes,  such  part  of  the  land 
or  naval  force  of  the  United  States,  as  shall  be  judged 
necessary,  having  first  observed  all  the  prerequisites 
of  the  law  in  that  respect." 

And  the  act  of  February  28th,  1795,  "to  provide  for 
calling  forth  the  militia  to  execute  the  laws  of  the 
Union,"  etc.,  provided:  "That  whenever  the  United 
States  shall  be  invaded,  or  be  in  imminent  danger  of 
invasion  from  any  foreign  nation  or  Indian  tribe,  it 
shall  be  lawful  for  the  President  of  the  United  States 
to  call  forth  such  number  of  the  militia  of  the  State, 
or  States,  most  convenient  to  the  place  of  danger,  or 
scene  of  action,  as  he  may  judge  necessary  to  repel 
such  invasion,  and  to  issue  his  orders  for  that  purpose 
to  such  officer  or  officers  of  the  militia  as  he  shall 
think  proper.  And  in  case  of  an  insurrection  in  any 
State,  against  the  government  thereof,  it  shall  be 
lawful  for  the  President  of  the  United  States,  on 
application  of  the  legislature  of  such  State,  or  of  the 
executive  (when  the  legislature  can  not  be  convened), 
to  call  forth  such  number  of  the  militia  of  any  other 
State  or  States,  as  may  be  applied  for,  as  he  may  judge 
sufficient  to  suppress  such  insurrection. 

"And  *  *  *  whenever  the  laws  of  the  United 
States  shall  be  opposed,  or  the  execution  thereof 
obstructed,  in  any  State,  by  combinations  too  power- 


20 

ful  to  be  suppressed  by  the  ordinary  course  of  judicial 
proceedings,  or  by  the  powers  vested  in  the  marshals 
by  this  act,  it  shall  be  lawful  for  the  President  of 
the  United  States,  to  call  forth  the  militia  of  such 
State,  or  of  any  other  State  or  States,  as  may  be 
necessary  to  suppress  such  combinations,  and  to 
cause  the  laws  to  be  duly  executed ;  and  the  use  of 
militia  so  to  be  called  forth  may  be  continued,  if 
necessary,  until  the  expiration  of  thirty  days  after 
the  commencement  of  the  then  next  session  of  Con- 
gress."1 

1  Attorney  General  Black,  in  an  opinion  dated  November  20, 
1860,  and  addressed  to  President  Buchanan,  said : 

"By  the  act  of  1807,  you  may  employ  such  parts  of  the  land 
and  naval  forces  as  you  may  judge  necessary,  for  the  purpose  of 
causing  the  laws  to  be  duly  executed,  in  all  cases  where  it  is  law- 
ful to  use  the  militia  for  the  same  purpose.  By  the  act  of  1795, 
the  militia  may  be  called  forth  '  whenever  the  laws  of  the  United 
States  shall  be  opposed,  or  the  execution  thereof  obstructed  in 
any  State,  by  combinations  too  powerful  to  be  suppressed  by  the 
ordinary  course  of  judicial  proceedings,  or  by  the  power  vested  in 
the  marshals. '  This  imposes  upon  the  President  the  sole  responsi- 
bility of  deciding  whether  the  exigency  has  arisen  which  requires 
the  use  of  military  force,  and  in  proportion  to  the  magnitude  of 
that  responsibility  will  be  his  care  not  to  overstep  the  limits  of 
his  legal  and  just  authority. 

"The  laws  referred  to  in  the  act  of  1795  are  manifestly  those 
which  are  administered  by  the  judges  and  executed  by  the  min- 
isterial officers  of  the  courts  for  the  punishment  of  crime  against 
the  United  States,  for  the  protection  of  rights  claimed  under  the 
Federal  Constitution  and  laws,  and  for  the  enforcement  of  such 
obligations  as  come  within  the  cognizance  of  the  Federal  judi- 
ciary. To  compel  obedience  to  these  laws  the  courts  have  authority 
to  punish  all  who  obstruct  their  regular  administration,  and  the 
marshals  and  their  deputies  have  the  same  powers  as  sheriffs  and 
their  deputies  in  the  several  States  in  executing  the  laws  of  the 
States.  These  are  the  ordinary  means  provided  for  the  execution 
of  the  laws,  and  the  whole  spirit  of  our  system  is  opposed  to  the 
employment  of  any  other,  except  in  cases  of  extreme  necessity, 
arising  out  of  great  and  unusual  combinations  against  them. 
Their  agency  must  continue  to  be  used  until  their  incapacity  to 
cope  with  the  power  opposed  to  them  shall  be  plainly  demon- 
strated. It  is  only  upon  clear  evidence  to  that  effect  that  a  mili- 
tary force  can  be  called  into  the  field.  Even  then,  its  operations 


21 

This  last  section  was  repealed  by  act  of  July  29, 
1861,  "to  provide  for  the  suppression  of  the  rebellion 

must  be  purely  defensive.  It  can  suppress  only  such  combina- 
tions as  arc  found  directly  opposing  the  laws  and  obstructing  the 
execution  thereof.  It  can  do  no  more  than  what  might  and 
ought  to  be  done  by  a  civil  posse,  if  a  civil  posse  could  be  raised 
large  enough  to  meet  the  same  opposition.  On  such  occasions 
especially,  the  military  power  must  be  kept  in  strict  subordina- 
tion to  the  civil  authority,  since  it  is  only  in  aid  of  the  latter  that 
the  former  can  act  at  all." 

On  the  loth  of  April,  1861,  President  Lincoln  issued  a  procla- 
mation declaring  that  the  laws  of  the  United  States  were  opposed, 
and  their  execution  obstructed,  in  South  Carolina,  Georgia,  Ala- 
bama, Florida,  Mississippi,  Louisiana,  and  Texas  by  combina- 
tions too  powerful  to  be  suppressed  by  the  ordinary  course  of 
judicial  proceedings,  or  by  the  powers  vested  in  the  marshals  by 
law,  and  calling  forth  the  militia,  to  the  number  of  75,000,  to 
suppress  said  combinations,  and  to  cause  the  laws  to  be  duly 
executed. 

And  on  the  3rd  of  May  the  President,  by  an  assumption  of 
power  not  vested  in  him  by  the  Constitution,  issued  the  follow- 
ing proclamation : 

"Whereas  existing  exigencies  demand  immediate  and  ade- 
quate measures  for  the  protection  of  the  national  Constitution 
and  the  preservation  of  the  national  Union  by  the  suppression  of 
the  insurrectionary  combinations  now  existing  in  several  States 
for  opposing  the  laws  of  the  Union  and  obstructing  the  execu- 
tion thereof,  to  which  end  a  military  force  in  addition  to  that 
called  forth  by  my  proclamation  of  the  fifteenth  day  of  April  in 
the  present  year,  appears  to  be  indispensably  necessary : 

"Now,  therefore,  I,  Abraham  Lincoln,  President  of  the 
United  States,  and  Conimander-in-Chief  of  the  Army  and  Navy 
thereof,  and  of  the  militia  of  the  several  States  when  called  into 
actual  service,  do  hereby  call  into  the  service  of  the  United 
States  forty-two  thousand  and  thirty-four  volunteers,  to  serve 
for  the  period  of  three  years  unless  sooner  discharged,  and  to  be 
mustered  into  service  as  infantry  and  cavalry.  The  proportions 
of  each  arm  and  the  details  of  enrollment  and  organization  will 
be  made  known  through  the  Department  of  War. 

"And  I  also  direct  that  the  regular  army  of  the  United  States 
be  increased  by  the  addition  of  eight  regiments  of  infantry,  one 
regiment  of  cavalry,  and  one  regiment  of  artillery,  making  alto- 
gether a  maximum  aggregate  increase  of  twenty-two  thousand 
seven  hundred  and  fourteen,  officers  and  enlisted  men,  the  details 
of  which  increase  will  also  be  made  known  through  the  Depart- 
ment of  War. 

"And  I  further  direct  the  enlistment  for  not  less  than  one  or 
more  than  three  years,  of  eighteen  thousand  seamen,  in  addition 


against  and  resistance  to  the  laws  of  the  United 
States,"  etc.,  in  which  there  was  enacted  legislation1 

to  the  present  force,  for  the  naval  service  of  the  United  States. 
The  details  of  the  enlistment  and  organization  will  be  made 
known  through  the  Department  of  the  Navy. 

"The  call  for  volunteers,  hereby  made,  and  the  direction  for 
the  increase  of  the  regular  army,  and  for  the  enlistment  of  sea- 
men hereby  given,  together  with  the  plan  of  organization  adopted 
for  the  volunteers  and  for  the  regular  forces  hereby  authorized, 
will  be  submitted  to  Congress  as  soon  as  assembled. 

"In  the  meantime  I  earnestly  invoke  the  cooperation  of  all 
good  citizens  in  the  measures  hereby  adopted,  for  the  effectual 
suppression  of  unlawful  violence,  for  the  impartial  enforcement 
of  constitutional  laws,  and  for  the  speediest  possible  restoration 
of  peace  and  order,  and,  with  these,  of  happiness  and  prosperity 
throughout  the  country." 

1  The  following  extract  from  a  speech  of  Stephen  A.  Douglas, 
delivered  in  the  Senate,  March  15th,  1861,  explains  the  necessity 
for  this  legislation ;  for  if  Stephen  A.  Douglas's  view  was  correct, 
the  President  stood  sorely  in  need  of  further  power : 

"But  we  are  told  that  the  President  is  going  to  enforce  the 
laws  in  the  seceded  States.  How  ?  By  calling  out  the  militia 
and  using  the  Army  and  Navy !  These  terms  are  used  as  freely 
and  as  flippantly  as  if  we  were  in  a  military  Government  where 
martial  law  was  the  only  rule  of  action,  and  the  will  of  the  mon- 
arch was  the  only  law  to  the  subject.  Sir,  the  President  can  not 
use  the  Army,  or  the  Navy,  or  the  militia,  for  any  purpose  not 
authorized  by  law ;  and  then  he  must  do  it  in  the  manner,  and 
only  in  the  manner,  prescribed  by  law.  What  is  that  ?  If  there 
be  an  insurrection  in  any  State  against  the  laws  and  authorities 
thereof,  the  President  can  use  the  military  to  put  it  down  only 
when  called  upon  by  the  State  legislature,  if  it  be  in  session,  or, 
if  it  can  not  be  convened,  by  the  governor.  He  can  not  interfere 
except  when  requested.  If,  on  the  contrary,  the  insurrection  be 
against  the  laws  of  the  United  States  instead  of  a  State,  then  the 
President  can  use  the  military  only  as  a,  posse  comitatus  in  aid  of 
the  marshal  in  such  cases  as  are  so  extreme  that  judicial  author- 
ity and  the  power  of  the  marshal  can  not  put  down  the  obstruc- 
tion. The  military  can  not  be  used  in  any  case  whatever  except 
in  aid  of  civil  process  to  assist  the  marshal  to  execute  a  writ.  I 
shall  not  quote  the  laws  upon  this  subject ;  but  if  gentlemen  will 
refer  to  the  acts  of  1795  and  1807,  they  will  find  that  under  the 
act  of  1795  the  militia  only  could  be  called  out  to  aid  in  the  en- 
forcement of  the  laws  when  resisted  to  such  an  extent  that  the 
marshal  could  not  overcome  the  obstruction.  By  the  act  of  1807, 
the  President  is  authorized  to  use  the  Army  and  Navy  to  aid  in 
enforcing  the  laws  in  all  cases  where  it  was  before  lawful  to  use 
the  militia.  Hence  the  military  power,  110  matter  whether  Navy, 


23 

now  transferred  to  the  Revised  Statutes  as  section 
5298,  viz: 

"Whenever,  by  reason  of  unlawful  obstructions, 
combinations,  or  assemblages  of  persons,  or  rebellion 
against  the  authority  of  the  Government  of  the  United 
States,  it  shall  become  impracticable,  in  the  judgment 
of  the  President,  to  enforce,  by  the  ordinary  course  of 
judicial  proceedings,  the  laws  of  the  United  States 
within  any  State  or  Territory,  it  shall  be  lawful  for 
the  President  to  call  forth  the  militia  of  any  or  all  the 
States,  and  to  employ  such  parts  of  the  land  and  naval 
forces  of  the  United  States  as  he  may  deem  necessary 
to  enforce  the  faithful  execution  of  the  laws  of  the 
United  States,  or  to  suppress  such  rebellion,  in  what- 
ever State  or  Territory  thereof  the  laws  of  the  United 
States  may  be  forcibly  opposed,  or  the  execution  thereof 
forcibly  obstructed. " 

Of  the  legislation  intended  to  invest  the  President 
with  authority  to  make  use  of  the  Army  in  the  execu- 
tion of  the  laws  this  is  the  most  frequently  appealed 
to.  In  1878,  after  the  passage  of  the  legislation  of 
that  year,  above  cited,  Attorney  General  Devens  gave 
his  opinion  that  under  section  5298  the  President  might 
use  the  Army  to  suppress  "organized,  armed  and  for- 
tified resistance  to  the  collection  of  internal  revenue 
in  Baxter  County,  Arkansas ; " '  and  in  the  same  year 

regulars,  volunteers,  or  militia,  can  be  used  only  in  aid  of  the 
civil  authorities. 

"  Now,  sir,  how  are  you  going  to  create  a  case  in  one  of  these 
seceded  States  where  the  President  would  be  authorized  to  call 
out  the  military  ?  You  must  first  procure  a  writ  from  the  judge 
describing  the  crime ;  you  must  place  that  in  the  hands  of  the 
marshal,  and  ho  must  meet  such  obstructions  as  render  it  impos- 
sible for  him  to  execute  it ;  and  then,  and  not  till  then,  can  you 
call  upon  the  military. " 

'16  Opin.  Atty.  Gen.,  162. 


24 

the  President  issued  his  proclamation  warning  all  per- 
sons in  the  Territory  of  New  Mexico  to  desist  from 
the  obstruction  of  the  laws  of  the  United  States,  which 
by  reason  of  unlawful  assemblages  and  combinations 
of  persons  in  arms  it  had  become  impracticable  to 
enforce  by  the  ordinary  course  of  judicial  proceed- 
ings— such  proclamation  being  by  law  required  before 
the  military  forces  could  be  used. 

In  1882,  it  appearing  that  the  enforcement  of  the 
laws  in  the  Territory  of  Arizona  was  ' '  obstructed  and 
resisted  to  such  a  degree  by  powerful  combinations  of 
outlaws  and  criminals,  with  whom  even  some  of  the 
local  officers  are  alleged  to  be  in  league,  that  a  state 
of  lawlessness  bordering  on  anarchy  may  be  said  to 
prevail,"  Attorney  General  Brewster  held  that  the 
contingency  was  amply  provided  for  by  section  5298. ' 

In  1889,  Attorney  General  Miller,  in  an  opinion  re- 
lating to  resistance  to  the  enforcement  of  the  laws  in 
the  Indian  Territory,  said  that  it  was  certainly  com- 
petent for  the  President,  under  section  5298,  to  direct 
the  military  forces  to  render  such  aid  to  the  marshal, 
upon  his  request,  as  might  be  necessary  to  enable  him 
to  maintain  the  peace  and  enforce  the  laws  of  the 
United  States  in  the  Territory.2 

In  1892,  the  President  issued  a  proclamation  declar- 
ing that  by  reason  of  unlawful  obstructions,  combi- 
nations, and  assemblages  of  persons,  it  had  become 
impracticable  to  enforce  by  the  ordinary  course  of 
judicial  proceedings  the  laws  of  the  United  States 
within  the  District  of  Wyoming,  the  United  States 
marshal  being  unable  to  execute  the  process  of  the 


1 17  Opin.  Atty.  Gen.,  333. 
2 19  Opin.  Atty.  Gen.,  293. 


25 

courts,  and  commanding  all  persons  engaged  in  resist- 
ance to  the  laws  and  the  process  of  the  United  States 
courts  to  disperse.1 

On  the  8th  of  July,  1894,  the  President  issued  the 
following  proclamation : 

' '  Whereas,  by  reason  of  unlawful  obstructions, 
combinations  and  assemblages  of  persons,  it  has  be- 
come impracticable  in  the  judgment  of  the  President 
to  enforce  by  the  ordinary  course  of  judicial  proceed- 
ings, the  laws  of  the  United  States  within  the  State 
of  Illinois  and  especially  in  the  city  of  Chicago  within 
said  State; 

''And,  whereas,  for  the  purpose  of  enforcing  the 
faithful  execution  of  the  laws  of  the  United  States 
and  protecting  its  property  and  removing  obstruc- 
tions to  the  United  States  mails  in  the  State  and  city 
aforesaid,  the  President  has  employed  a  part  of  the 
military  forces  of  the  United  States ; 

"Now,  therefore,  I,  Grover  Cleveland,  President  of 
the  United  States,  do  hereby  admonish  all  good  citi- 
zens and  all  persons  who  may  be  or  may  come  within 
the  city  and  State  aforesaid,  against  aiding,  counte- 
nancing, encouraging,  or  taking  any  part  in  such  un- 
lawful obstructions,  combinations  and  assemblages; 
and  I  hereby  warn  all  persons  engaged  in  or  in  any 
way  connected  with  such  unlawful  obstructions,  com- 
binations and  assemblages  to  disperse  and  retire 
peaceably  to  their  respective  abodes  on  or  before 
twelve  o'clock  noon  on  the  ninth  day  of  July  instant. 

"Those  who  disregard  this  warning  and  persist  in 
taking  part  with  a  riotous  mob  in  forcibly  resisting 
and  obstructing  the  execution  of  the  laws  of  the  United 

1  See  Winthrop's  Military  Law  and  Precedents,  p.  1351. 


26 

States,  or  interfering  with  the  functions  of  the  Gov- 
ernment or  destroying  or  attempting  to  destroy  the 
property  belonging  to  the  United  States  or  under  its 
protection,  can  not  be  regarded  otherwise  than  as 
public  enemies. 

' '  Troops  employed  against  such  a  riotous  mob,  will 
act  with  all  the  moderation  and  forbearance  consistent 
with  the  accomplishment  of  the  desired  end ;  but  the 
stern  necessities  that  confront  them  will  not  with  cer- 
tainty permit  discrimination  between  guilty  partici- 
pants and  those  who  are  mingled  with  them  from 
curiosity  and  without  criminal  intent.  The  only  safe 
course  therefore  for  those  not  actually  unlawfully 
participating  is  to  abide  at  their  homes,  or  at  least  not 
to  be  found  in  the  neighborhood  of  riotous  assem- 
blages. 

4 '  While  there  will  be  no  hesitation  or  vacillation  in 
the  decisive  treatment  of  the  guilty,  this  warning  is 
especially  intended  to  protect  and  save  the  innocent." 

And  on  the  9th  of  July  the  President  issued  the  fol- 
lowing proclamation : 

"Whereas,  by  reason  of  unlawful  obstructions, 
combinations  and  assemblages  of  persons,  it  has  be- 
come impracticable  in  the  judgment  of  the  President, 
to  enforce  by  the  ordinary  course  of  judicial  pro- 
ceedings the  laws  of  the  United  States  at  certain 
points  and  places  within  the  States  of  North  Dakota, 
Montana,  Idaho,  Washington,  Wyoming,  Colorado, 
and  California  and  the  Territories  of  Utah  and  New 
Mexico,  and  especially  along  the  lines  of  such  railways 
traversing  said  States  and  Territories  as  are  military 
roads  and  post  routes  and  are  engaged  in  interstate 
commerce  and  in  carrying  United  States  mails ; 


27 

"And,  whereas,  for  the  purpose  of  enforcing  the 
faithful  execution  of  the  laws  of  the  United  States, 
and  protecting  property  belonging  to  the  United 
States  or  under  its  protection,  and  of  preventing  ob- 
structions of  the  United  States  mails  and  of  commerce 
between  the  States  and  Territories,  and  of  securing  to 
the  United  States  the  right  guaranteed  by  law  to  the 
use  of  such  roads  for  postal,  military,  naval,  and  other 
government  service,  the  President  has  employed  a 
part  of  the  military  forces  of  the  United  States ; 

' '  Now,  therefore,  I,  Grover  Cleveland,  President  of 
the  United  States,  do  hereby  command  all  persons 
engaged  in,  or  in  any  way  connected  with  such  un- 
lawful obstructions,  combinations  and  assemblages, 
to  disperse  and  retire  peaceably  to  their  respective 
abodes  on  or  before  3  o'clock  in  the  afternoon,  on  the 
tenth  day  of  July  instant." 

It  deserves  notice  that,  as  appears  by  the  proclama- 
tion of  July  8th  itself,  the  military  forces  were  called 
into  use  before  the  proclamation  was  issued.  When- 
ever, in  the  judgment  of  the  President,  it  becomes 
necessary  to  use  the  military  forces  under  the  title  of 
the  Revised  Statutes  to  which  section  5298  belongs,  he 
is  required,  by  section  5300,  to  issue  his  proclamation 
commanding  the  insurgents  to  disperse  and  retire 
peaceably  to  their  respective  abodes  within  a  limited 
time.  But  it  might  be  that  the  object  of  the  employ- 
ment of  troops  would  not  be  the  dispersal  of  insur- 
gents but  the  overcoming  and  arrest  of  persons  vio- 
lating and  defying  the  laws  and  judicial  proceedings 
of  the  United  States,  or  the  protection  of  the  instru- 
mentalities of  the  United  States,  such  as  its  treasury 
or  mails,  and  that  the  immediate  use  of  the  troops 


28 

would  be  necessary.  This  suggests  the  important 
question  whether  there  is  not  authority  for  the  use  of 
the  Army  in  the  execution  of  the  laws  other  than  that 
which  is  derived  from  the  Constitution  through  the 
medium  of  statutes.1 

The  Constitution  of  the  United  States  requires  that— 
"The  United  States  shall  guarantee  to  every  State2 


1  The  different  acts  of  legislation  authorizing  the  employment 
of  troops  in  the  enforcement  of  the  laws  are  given  in  the  Army 
regulations  (Article  LII ) ;  Apj>endi.r  B.  See  also  Da  vis's  Military 
Laws,  Chapter  XXXVIII.  and  Wiiithrop's  Military  Law  and 
Precedents,  page  1347,  et  seq. 

The  act  of  1878  and  the  constitutional  and  statutory  provisions 
understood  to  be  excepted  from  its  prohibition  were  published  to 
the  Army  in  a  general  order  from  the  headquarters  of  the  Army, 
a  provision  of  which  required  that  applications  for  the  use  of 
troops  should  be  forwarded  for  the  action  of  the  President.  This 
was  subsequently  modified  by  the  War  Department  in  the  follow- 
ing instructions  to  General  Ord : 

"  In  an  emergency  a  commander  is  authorized  to  disregard  the 
long  communications  through  intermediate  channels,  and  may 
telegraph  direct  to  the  Adjutant  General. 

"  The  posse  comitatus  law  is  not  supposed  to  apply  to  repelling 
invasions  of  foreigners  against  United  States  Territory,  nor  to 
protection  of  United  States  property  against  violence.  As  a  citi- 
zen may  defend  his  house  against  a  robber,  so  the  United  States 
may  defend  its  treasury,  mails,  etc.,  against  lawless  violence." 

To  which  General  Ord  added : 

"As  it  is  impossible  to  protect  United  States  property  without 
protecting  the  officers  in  charge,  in  the  view  of  the  department 
commander  the  preceding  paragraph  authorizes  the  protection 
of  an  officer  of  the  United  States,  civil  or  military,  from  violence 
by  lawless  bands,  while  in  the  execution  of  his  office. "  (Circular 
No.  18,  1878,  Department  of  Texas. ) 

In  1879,  two  officers  of  the  Army  were  indicted  in  Texas  for 
assisting  the  United  States  marshal  with  troops  in  arresting  per- 
sons for  violations  of  the  revenue  laws. 

2 The  word  "State."  as  here  used,  includes  an  organized  Terri- 
tory. At  the  time  of  the  violent  disorders  in  Xew  Mexico,  in 
1878,  the  governor  of  the  Territory  applied  to  the  President  for 
protection,  but  the  proclamation  which  was  issued  by  the  Presi- 
dent shows  that  the  use  of  troops  was  not  based  on  this  guaranty, 
but  on  the  power  given  him  by  statute,  to  use  the  land  and 
naval  forces  to  enforce  the  execution  of  the  laws  of  the  L^nited 
States,  when  by  reason  of  unlawful  obstructions,  combinations 


29 

in  this  Union  a  republican  form  of  government,  and 
shall  protect  each  of  them  against  invasion ;  and  on 
application  of  the  legislature,  or  of  the  executive, 
(when  the  legislature  cannot  be  convened,)  against 
domestic  violence." 

There  are  here  three  guaranties — the  guaranty  of  a 
republican  form  of  government,  the  guaranty  against 
invasion,  and  the  guaranty  against  domestic  violence. 
It  is  important  to  keep  this  in  mind  in  considering 
who  is  meant  by  the  United  States,  because  it  seems 
to  have  been  too  readily  assumed  that,  with  reference 
to  each  of  these  guaranties,  "The  United  States"  means 
Congress  only,  and  that  therefore  Congress  must  give 
life  to  each  of  them  by  legislation.  In  the  case  of 
Texas  v.  White,1  the  Supreme  Court  held  with  refer- 
ence to  the  government  set  up  by  the  executive 

or  assemblages  of  persons,  or  rebellion  against  the  authority  of 
the  Government  of  the  United  States,  it  becomes  impracticable 
to  enforce  the  laws  of  the  United  States  within  any  State  or  Ter- 
ritory by  the  ordinary  course  of  judicial  proceedings.  It  was  at 
that  time  held  that  the  word  "State,"  as  used  in  the  guaranty 
clause,  does  not  include  a  "Territory,"  but  this  view  has  not 
since  then  been  adhered  to.  Thus,  President  Cleveland,  on  the 
7th  of  November,  1885,  issued  his  proclamation  on  the  represen- 
tation of  the  governor  of  the  Territory  of  Washington  that  do- 
mestic violence  existed  in  that  Territory,  etc. ,  and  on  the  9th  of 
February,  1886,  he  issued  a  similar  proclamation,  also  on  the 
application  of  the  governor  of  the  Territory  of  Washington.  So, 
also,  the  governor  of  the  Territory  of  Wyoming,  having  (in  1885) 
telegraphed  to  the  Secretary  of  War,  with  reference  to  the  brutal 
attack  on  the  Chinese  employed  as  miners  by  the  Union  Pacific 
Railway  Company,  that  the  county  authorities  were  powerless, 
that  the  Territory  had  no  militia,  and  that  he  had  applied  to 
General  Howard,'  at  Omaha,  for  military  aid,  he  was  informed 
that  before  it  could  be  given  he  must  make  application  to  the 
President  in  the  manner  indicated  in  the  Constitution. 

The  President  in  these  cases  evidently  based  his  action  on  a 
construction  of  the  word  "State"  sufficiently  broad  to  include 
inchoate  States  or  organized  Territories. 

See  also  Paschal's  Ann.  Const.,  p.  242. 

1 7  Wallace,  700,  729. 


30 

department  in  Texas  after  the  rebellion,  and  speaking 
of  the  guaranty  clause  of  the  Constitution,  as  follows : 

"It  is  not  important  to  review  at  length  the  meas- 
ures which  have  been  taken,  under  this  power,  by  the 
executive  and  legislative  departments  of  the  National 
Government.  It  is  proper,  however,  to  observe  that 
almost  immediately  after  the  cessation  of  organized 
hostilities,  and  while  the  war  yet  smoldered  in  Texas, 
the  President  of  the  United  States  issued  his  procla- 
mation appointing  a  provisional  governor  for  the 
State,  and  providing  for  the  assembling  of  a  conven- 
tion, with  a  view  to  the  reestablishment  of  a  republi- 
can government,  under  an  amended  constitution,  and 
to  the  restoration  of  the  State  to  her  proper  constitu- 
tional relations.  A  convention  was  accordingly  assem- 
bled, the  constitution  amended,  elections  held,  and  a 
State  government,  acknowledging  its  obligations  to 
the  Union,  established. 

"  Whether  the  action  then  taken  was,  in  all  respects, 
warranted  by  the  Constitution,  it  is  not  now  neces- 
sary to  determine.  The  power  exercised  by  the  Pres- 
ident was  supposed,  doubtless,  to  be  derived  from  his 
constitutional  functions,  as  commander-in-chief ;  and, 
so  long  as  the  war  continued,  it  can  not  be  denied  that 
he  might  institute  temporary  government  within 
insurgent  districts,  occupied  by  the  National  forces, 
or  take  measures,  in  any  State,  for  the  restoration  of 
State  government  faithful  to  the  Union,  employing, 
however,  in  such  efforts,  only  such  means  and  agents 
as  were  authorized  by  constitutional  laws. 

"But,  the  power  to  carry  into  effect  the  clause 
of  guaranty  is  primarily  a  legislative  power,  and 
resides  in  Congress.  '  Under  the  fourth  article  of  the 


31 

Constitution,  it  rests  with  Congress  to -decide  what 
government  is  the  established  one  in  a  State.  For,  as 
the  United  States  guarantee  to  each  State  a  republi- 
can government,  Congress  must  necessarily  decide 
what  government  is  established  in  the  State,  before 
it  can  determine  whether  it  is  republican  or  not.' 

4 'This  is  the  language  of  the  late  Chief  Justice, 
speaking  for  this  Court,  in  a  case  from  Rhode  Island,1 
arising  from  the  organization  of  opposing  govern- 
ments in  that  State.  And,  we  think  that  the  principle 
sanctioned  by  it  may  be  applied,  with  even  more  pro- 
priety, to  the  case  of  a  State  deprived  of  all  rightful 
government,  by  revolutionary  violence ;  though  neces- 
sarily limited  to  cases  where  the  rightful  government 
is  thus  subverted,  or  in  imminent  danger  of  being 
overthrown  by  an  opposing  government,  set  up  by 
force  within  the  State. 

4 'The  action  of  the  President  must,  therefore,  be 
considered  as  provisional,  and,  in  that  light,  it  seems 
to  have  been  regarded  by  Congress." 

The  period  to  which  this  decision  relates  was  not 
one  of  normal  conditions.  It  was  a  period  following 
a  war.  And  the  locality  to  which  it  relates  had  been 
a  State  in  rebellion.  Under  these  circumstances,  the 
immediate  restoration  of  the  Constitution  to  its  full 
force  was,  doubtless,  impossible.  The  power  exer- 
cised by  the  President  might,  therefore,  be  justified  on 
the  ground  of  necessity — the  necessity  of  establishing 
some  temporary  government — and  this  seems  to  have 
been  in  the  minds  of  the  Supreme  Court.  But  their 
decision  does  not  go  to  the  extent  of  saying  that  under 
other  conditions  the  President  would  not,  in  the 

1  Luther  v.  Borden,  7  Howard,  42. 


32 

absence  of  any  action  by  Congress,  have  had  devolved 
upon  him  a  duty  under  the  guaranty  clause  of  the 
Constitution.  That  "the  power  to  carry  into  effect 
the  clause  of  guaranty  is  primarily  a  legislative  power  " 
is  not  questioned,  but  that ' '  The  United  States,"  as  that 
designation  is  used  in  the  guaranty  clause,  means 
Congress  only,  and  can  never  Milder  any  circumstances 
mean  the  President,  is  believed  to  be  a  quite  untenable 
position,  and  does  not  seem  to  have  been  intended  by 
the  Supreme  Court.  The  fact  that  the  power  is  vested 
primarily  in  Congress  is  not  equivalent  to  saying  that 
it  is  vested  exclusively  there,  and  that  therefore  the 
President  can  have  no  power  under  this  clause  of 
the  Constitution,  even  though  Congress  should  fail  to 
legislate. 

Moreover,  the  Supreme  Court,  in  the  case  of  Texas  v. 
White,  was  discussing  the  power  of  the  President  only 
as  to  one  of  the  three  guaranties — the  guaranty  of  a 
republican  form  of  government,  and  if  we  were  to 
construe  the  language  of  the  court  to  mean  that  Con- 
gress alone  has  jurisdiction,  it  would  become  a  ques- 
tion whether  we  should  apply  the  same  principle  to 
the  guaranty  against  invasion  and  domestic  violence. 
These  three  guaranties  are  in  the  same  clause,  and 
"The  United  States"  are  required  to  furnish  them 
all.  But  it  can  not  be  said,  nor  would  it  be  practi- 
cable, nor  as  to  the  guaranty  against  domestic  violence 
historically  true,  that  the  guaranties  against  invasion 
and  domestic  violence  are  exclusively  in  the  hands  of 
Congress.  To  hold  that  would  be  to  destroy  the  value 
of  these  guaranties.  They  are  not  limited  in  time  to 
the  sessions  of  Congress,  but  are  intended  to  be  effect- 
ive at  all  times.  Who,  then,  is  to  furnish  the  guaranty 
when  Congress  is  not  in  session  ? 


33 

And,  further,  the  power  to  furnish  the  protection 
guaranteed  involves  the  power  to  command,  which 
the  President,  as  commander-in-chief,  has  over  the 
military  forces.  Congress  can  not  exercise  this  power, 
and  therefore,  in  order  that  it  shall  be  exercised,  "The 
United  States"  must  be  held  to  apply  to  the  President, 
as  well  as  to  Congress. 

In  the  case  of  Luther  v.  Borden J  it  was  said  that  it 
is  not  a  judicial,  but  a  political'  question  whether  a 
certain  government  is  the  duly  constituted  govern- 
ment of  a  State,  and  that  under  the  guaranty  clause 
of  the  Constitution  it  rests  with  Congress  to  decide 
what  government  is  the  established  one  in  a  State, 
and  that  as  to  that  part  of  the  clause  which  relates  to 
domestic  violence  it  also  rests  with  Congress  to  deter- 
mine upon  the  means  proper  to  be  adopted  to  fulfill 
the  guaranty.  It  was  held  to  be  a  political  and  not  a 
judicial  power.  Congress  might,  it  was  said,  if  it  had 
deemed  it  advisable,  have  placed  it  in  the  power  of  a 
court  to  decide  when  the  contingency  had  happened 
which  required  the  Federal  Government  to  interfere. 
But  Congress  thought  otherwise,  and  no  doubt  wisely ; 
and  by  the  act  of  February  28,  1795,  provided,  that 
' '  in  case  of  any  insurrection  in  any  State  against  the 
government  thereof,  it  shall  be  lawful  for  the  Presi- 
dent of  the  United  States,  on  application  of  the  legis- 
lature of  such  State  or  of  the  executive,  when  the 
legislature  can  not  be  convened,  to  call  forth  such 
number  of  the  militia  of  any  other  State  or  States,  as 
may  be  applied  for,  as  he  may  judge  sufficient  to  sup- 
press such  insurrection," — thus  giving  to  the  President 
the  power  to  decide  whether  the  exigency  has  arisen 
upon  which  the  Government  of  the  United  States  is 
bound  to  interfere. 

1 7  Howard,  1. 

16796 3 


34 

There  was  no  question  in  this  case  as  to  whether,  in 
the  absence  of  any  action  by  Congress,  a  duty  might 
not  under  the  guaranty  clause  devolve  on  the  Presi- 
dent. As  one  of  the  ways  in  which  a  republican  gov- 
ernment, once  established  in  a  State,  may  be  endan- 
gered or  set  aside,  Judge  Cooley  mentions  the  hostile 
action  of  some  foreign  power  in  taking  military  pos- 
session of  the  territory  of  the  State  and  setting  up 
some  government  therein  not  established  by  the  people 
themselves.  And  in  this  connection  it  is  to  be 
remembered  that  the  second  guaranty  is  against  inva- 
sion. But  Congress  has  not  authorized  the  President 
to  employ  the  Army  in  repelling  invasion.  It  has 
authorized  him  to  call  forth  the  militia,  but  has 
remained  silent  as  to  the  Army.  Can  it  be  for  any 
other  reason  than  that  he  already  has  the  power  ? 
Would  it  not  have  been  an  absurdity  for  Congress  to 
have  given  the  commander-in-chief  of  the  Army  per- 
mission to  use  it  to  repel  invasion  ?' 

1  If,  indeed,  the  use  of  the  Army  were  to  be  limited  to  such 
purposes  as  might  be  designated  by  Congress,  it  would  be  a  con- 
temptibly impotent  force,  for  it  would  be  impossible  for  Congress 
to  foresee  all  the  conditions  which  might  call  for  its  use.  But 
Congress  has  not  attempted  to  do  this.  The  every-day  use  of  the 
Army  is  not  even  regulated  by  Congress,  although  this  might, 
however  imperfectly,  be  done  by  legislation.  It  has  been  wisely 
left  to  the  control  of  the  commander-in-chief.  If  the  use  of  the 
Army  were  absolutely  dependent  on  the  designation  by  Congress 
of  the  purposes  for  which  it  may  be  employed,  it  could  not  even 
protect  all  the  property  of  the  United  States  under  its  charge,  for 
Congress  has  not  made  it  its  duty  to  do  so,  except  in  certain  spe- 
cial cases.  But,  to  create  an  army  is  to  create  it  for  the  ordinary 
purposes  for  which  armies  are  used,  and  the  power  of  the  Presi- 
dent as  commander-in-chief  to  use  it  for  such  purposes  can  not 
be  questioned.  The  object  of  the  legislation  of  1878  was  to  place 
restrictions  on  the  use  of  the  Army  in  "executing  the  laws,"  but 
this  had  reference  only  to  the  ordinary  civil  and  criminal  laws 
of  the  land.  It  was  not  intended  to  place  any  restriction  on  its 
use  for  ordinary  military  purposes.  The  Army  is  all  the  time 
used  for  purposes  not  prescribed  by  Congress,  and  the  President 
is  doing  this  by  virtue  of  his  power  as  coiimiander-in-chief. 


35 

By  the  Constitution,  said  Mr.  Justice  Grier,  in  the 
Prize  Cases  (2  Black.,  635),  Congress  alone  has  the 
power  to  declare  a  national  or  foreign  war.  It  cannot 
declare  "war  against  a  State,  or  any  number  of  States, 
by  virtue  of  any  clause  in  the  Constitution.  The  Con- 
stitution confers  on  the  President  the  whole  executive 
power.  He  is  bound  to  take  care  that  the  laws  be 
faithfully  executed.  He  is  comniander-iii-chief  of  the 
Army  and  Navy  of  the  United  States,  and  of  the  niili- 
tia  of  the  several  States  when  called  into  the  actual 
service  of  the  United  States.  He  has  no  power  to  ini- 
tiate or  declare  a  war  either  against  a  foreign  nation  or 
a  domestic  State.  But  by  the  acts  of  Congress  of  Feb- 
ruary 28th,  IT'Jo,  and  3d  of  March,  1807,  he  is  authorized 
to  call  out  the  militia  and  use  the  military  and  naval 
forces  of  the  United  States  in  case  of  invasion  by  for- 
eign nations,1  and  to  suppress  insurrections  against 
the  government  of  a  State  or  of  the  United  States.  If 
a  war  be  made  by  invasion  of  a  foreign  nation,  the 
President  is  not  only  authorized  but  bound  to  resist 
force  by  force.  He  does  not  initiate  the  war,  but  is 
bound  to  accept  the  challenge  without  waiting  for  any 
special  legislative  authority.  And  whether  the  hostile 
party  be  a  foreign  invader,  or  States  organized  in 
rebellion,  it  is  none  the  less  a  war,  although  the  declara- 
tion of  it  be  "  unilateral."  Lord  Stowell  (1  Dodson, 
247)  observes,  "  It  is  not  the  less  a  war  on  that  account, 
for  war  may  exist  without  a  declaration  on  either  side. 
It  is  so  laid  down  by  the  best  writers  on  the  law  of 
nations.  A  declaration  of  war  by  one  country  only, 

irriiis,  however,  is  a  mistake.  The  legislation  of  1795  related 
only  to  calling  out  the  niilitia,  and  that  of  1807.  which  did  pro- 
vide for  the  employment  of  the  land  and  naval  forces,  made  no 
mention  of  repefiing  invasion,  but  provided  only  for  the  suppres- 
sion of  insurrection  and  obstruction  to  the  laws. 


36 

is  not  a  mere  challenge  to  be  accepted  or  refused  at 
pleasure  by  the  other."  The  battles  of  Palo  Alto  and 
Resaca  de  la  Palma  had  been  fought  before  the  pas- 
sage of  the  act  of  Congress  of  May  13th,  1840,  which 
recognized  ' '  a  state  of  war  as  existing  by  the  act  of  the 
republic  of  Mexico."  This  act  not  only  provided  for 
the  future  prosecution  of  the  war,  but  was  itself  a 
vindication  and  ratification  of  the  act  of  the  President 
in  accepting  the  challenge  without  a  previous  formal 
declaration  of  war  by  Congress. 

Under  the  Constitution  the  legislative  and  execu- 
tive branches  of  the  Government  sometimes  have  the 
power  to  act  in  the  same  subject-matter.  This  was 
discussed  in  remarks,  elsewhere  made, 1  on  the  source  of 
authority  of  the  Army  Regulations,  with  reference  to 
which  it  was  pointed  out  that,  although  Congress,  under 
its  power  "to  make  rules  for  the  government  and  regu- 
lation of  the  land  and  naval  forces,"  has  primarily  the 
authority  to  cover  the  whole  field  of  Army  Regulations, 
yet,  subject  to  this  power,  the  President,  as  commander- 
in-chief,  has  a  jurisdiction  over  the  same  subject- 
matter — as  repeatedly  recognized  by  the  Supreme 
Court.  So  that,  in  the  absence  of  legislation  regu- 
lating any  matter  of  army  administration,  the  Presi- 
dent's power  is  effective.  The  guaranty  clause  makes 
it  the  duty  of  the  United  States  to  guarantee,  not  only 
a  republican  form  of  government,  but  against  inva- 
sion, and,  on  the  application  of  the  State,  against 
domestic  violence.  Of  course  Congress  can  materially 
aid,  and,  to  a  great  extent,  control  these  guaranties  by 
its  legislation,  but,  if  it  should  fail  to  legislate,  would 
the  constitutional  obligation  of  the  United  States  be 

1  Remarks  on  the  Army  Regulations  and  Executive  Regula- 
tions in  General,  Government  Printing  Office,  1898. 


37 

any  the  less?  And  if  the  President  has  the  actual 
power  to  give  this  constitutional  protection,  will  it 
not,  in  case  of  the  failure  of  Congress  to  furnish  it, 
rest  with  him  to  do  so  ?  His  power  and  duty  seem 
clear,  but  he  must  of  necessity  exercise  his  discretion 
in  determining  the  existence  of  the  conditions  demand- 
ing this  protection.  He  can  not  delegate  his  discre- 
tion to  the  legislatures  or  executives  of  States,  and 
thus  become  a  volitionless  instrument  in  their  hands. 
But  the  guaranty  clause  of  the  Constitution  is  not 
the  only  constitutional  provision  which  clothes  the 
Executive  with  the  power  to  use  force  in  the  execu- 
tion of  law.  If  his  power  were  limited  to  what  this 
clause  empowers  the  Federal  Government  to  do,  it 
would  be  inadequate  for  some  of  the  purposes  for 
which  it  may  be  required.  It  is  a  guaranty  to  the 
States  of  a  republican  form  of  government  and  against 
invasion  and  domestic  violence,  but  it  does  not  vest 
the  Federal  Executive  with  the  power  to  enforce  the 
laws  of  the  United  States.  This  power,  if  it  exists  at 
all  as  a  power  derived  directly  from  the  Constitution, 
must  be  found  elsewhere  in  that  instrument.  By  the 
Constitution,  the  "executive  power  is  vested  in  a 
President  of  the  United  States  of  America,"  whose 
duty  it  is  made  to  "take  care  that  the  laws  be  faith- 
fully executed."  Can  it  be  said  that  the  duty  thus 
imposed  is  lifeless,  without  the  help  of  Congress, 
because  the  Constitution  has  not  given  him  a  corre- 
sponding power  ? 

In  the  Neagle  case '  the  Supreme  Court  say : 
"The  Constitution,  section  3,  Article  II,  declares 
that  the  President  'shall  take  care  that  the  laws  be 

'135U.  S.,  1. 


38 

faithfully  executed,'  and  lie  is  provided  with  the 
means  of  fulfilling  this  obligation  by  his  authority  to 
commission  all  the  officers  of  the  United  States,  and, 
by  and  with  the  advice  and  consent  of  the  Senate,  to 
appoint  the  most  important  of  them  and  to  fill  vacan- 
cies. He  is  declared  to  be  commander-in-chief  of  the 
Army  and  Navy  of  the  United  States.  The  duties 
which  are  thus  imposed  upon  him  he  is  further  en- 
abled to  perform  by  the  recognition  in  the  Constitu- 
tion, and  the  creation  by  acts  of  Congress,  of  executive 
departments,  which  have  varied  in  number  from  four 
or  five  to  seven  or  eight,  the  heads  of  which  are 
familiarly  called  cabinet  ministers.  These  aid  him  in 
the  performance  of  the  great  duties  of  his  office,  and 
represent  him  in  a  thousand  acts  to  which  it  can 
hardly  be  supposed  his  personal  attention  is  called, 
and  thus  he  is  enabled  to  fulfill  the  duty  of  his  great 
department,  expressed  in  the  phrase  that  'he  shall 
take  care  that  the  laws  be  faithfully  executed.' 

"Is  this  duty  limited  to  the  enforcement  of  acts  of 
Congress  or  of  treaties  of  the  United  States  according 
to  their  express  terms,  or  does  it  include  the  rights, 
duties,  and  obligations  growing  out  of  the  Constitu- 
tion itself,  our  international  relations,  and  all  the 
protection  implied  by  the  nature  of  the  government 
under  the  Constitution  ?  " 

And,  illustrating  these  remarks,  the  Supreme  Court 
refer  to  the  Martin  Koszta  case  and  ask,  Upon  what 
act  of  Congress  then  existing  can  anyone  lay  his  fin- 
ger in  support  of  the  action  of  our  Government  in 
this  matter  ?  and,  Who  can  doubt  the  authority  of  the 
President  to  protect  the  mail,  ' '  whether  it  be  by  sol- 
diers of  the  Army  or  by  marshals  of  the  United 


39 

States?"  and,  Has  he  no  power,  in  the  absence  of  leg- 
islation by  Congress,  of  protecting  the  public  lands 
from  depredation  ? 

The  court  say  that  they  can  not  doubt  the  power  of 
the  President  to  take  measures  for  the  protection  of  a 
judge  of  one  of  the  courts  of  the  United  States,  who, 
while  in  the  discharge  of  the  duties  of  his  office,  is 
threatened  with  a  personal  attack  which  may  probably 
result  in  his  death,  and  that  they  think  it  clear  that 
where  this  protection  is  to  be  afforded  through  the 
civil  power,  the  Department  of  Justice  is  the  proper 
one  to  set  in  motion  the  necessary  means  of  protec- 
tion. ''That  there  is,"  say  the  court,  "a  peace  of 
the  United  States;  that  a  man  assaulting  a  judge 
of  the  United  States  while  in  the  discharge  of 
his  duties  violates  that  peace ;  that  in  such  case  the 
marshal  of  the  United  States  stands  in  the  same  rela- 
tion to  the  peace  of  the  United  States  which  the 
sheriff  of  the  county  does  to  the  peace  of  the  State  of 
California ;  are  questions  too  clear  to  need  argument 
to  prove  them." 

And  in  Ex  parte  Siebold  the  same  court  said : l 
"It  is  argued  that  the  preservation  of  peace  and 
good  order  in  society  is  not  within  the  powers  con- 
fided to  the  Government  of  the  United  States,  but 
belongs  exclusively  to  the  States.  Here  again  we  are 
met  with  the  theory  that  the  Government  of  the 
United  States  does  not  rest  upon  the  soil  and  terri- 
tory of  the  country.  We  think  that  this  theory  is 
founded  on  an  entire  misconception  of  the  nature 
and  powers  of  that  Government.  We  hold  it  to  be  an 
incontrovertible  principle,  that  the  Government  of  the 

1 100  U.S.,  394. 


40 

United  States  may,  by  means  of  physical  force,  exer- 
cised through  its  official  agents,  execute  on  every  foot 
of  American  soil  the  powers  and  functions  that  belong 
to  it.  This  necessarily  involves  the  power  to  com- 
mand obedience  to  its  laws,  and  hence  the  power  to 
keep  the  peace  to  that  extent." 

The  Supreme  Court  was  not  here  speaking  of  the 
President's  power  to  use  the  Army  in  aid  of  the  civil 
power  in  the  execution  of  the  laws.  But,  it  being  his 
duty  to  take  care  that  the  laws  are  faithfully  executed, 
does  not  what  the  court  say  lead  us  to  the  recognition 
of  his  power  to  resort  to  the  other  means  which  the 
Constitution  has  placed  in  his  hands  for  enforcing 
obedience  to  the  laws  of  the  United  States  when  the 
civil  power  fails  ?  ' '  The  power  and  duty  imposed  on 
the  President  to  'take  care  that  the  laws  are  faith- 
fully executed,'  necessarily  carries  with  it  all  power 
and  authority  necessary  to  accomplish  the  object 
sought  to  be  attained."1  "Where  the  law  directs  a 
thing  to  be  done  without  saying  how,  that  implies  the 
power  to  use  such  means  as  may  be  necessary  and 
proper  to  accomplish  the  end  of  the  legislature."2 

In  the  case  of  Logan  v.  United  States,3  the  Supreme 
Court  held  that  a  citizen  of  the  United  States,  in  the 
custody  of  a  United  States  marshal  under  a  lawful 
commitment  to  answer  for  an  offense  against  the  United 
States,  has  the  right  to  be  protected  by  the  United 
States  against  lawless  violence ;  that  this  right  is  se- 
cured to  him  by  the  Constitution  and  the  laws  of  the 
United  States;  and  that  a  conspiracy  to  injure  or 

'U.  S.  Cir.  Court,  in  the  Neagle  case,  39  Fed.  Rep.,  833. 
2  Attorney  General  Black,  9  Opin.,  519. 
3144U.  S.,  263. 


41 

oppress  him  in  its  free  exercise  or  enjoyment  is  punish- 
able under  section  5508  of  the  Revised  Statutes.  The 
court  said  that  every  right,  created  by,  arising  under, 
or  dependent  upon,  the  Constitution  of  the  United 
States,  may  be  protected  and  enforced  by  Congress  by 
such  means  and  in  such  manner  as  Congress,  in  the 
correlative  duty  of  protection,  or  of  the  legislative 
powers  conferred  upon  it  by  the  Constitution,  may  in 
its  discretion  deem  most  eligible  and  best  adapted  to 
attain  the  object ;  that  in  the  case  at  bar,  the  right  in 
question  did  not  depend  upon  any  of  the  amendments 
of  the  Constitution,  but  arose  out  of  the  creation  and 
establishment  by  the  Constitution  itself  of  a  national 
government,  paramount  and  supreme  within  its  sphere 
of  action ;  that  any  government  which  has  power  to 
indict,  try  and  punish  for  crime,  and  to  arrest  the  ac- 
cused and  hold  them  in  safe-keeping  until  trial,  must 
have  the  power  and  the  duty  to  protect  against  un- 
lawful interference  its  prisoners  so  held,  as  well  as  its 
executive  and  judicial  officers  charged  with  keeping 
and  trying  them. 

And  the  court  cite  the  decisions  in  the  Neagle  and 
Siebold  cases,  in  the  former  of  which,  say  the  court, 
"it  was  held  that,  although  there  was  no  express  act 
of  Congress  authorizing  the  appointment  of  a  deputy 
marshal  or  other  officer  to  attend  a  justice  of  this 
court  while  traveling  in  his  circuit,  and  to  protect 
him  against  assault  or  injury,  it  was  within  the  power 
and  duty  of  the  Executive  Department  to  protect  a 
judge  of  any  of  the  courts  of  the  United  States,  when 
there  was  just  reason  to  believe  that  he  would  be  in 
personal  danger  while  executing  the  duties  of  his 
office ; "  and  in  the  latter  of  which  cases  it  was  held 


42 

' '  to  be  an  incontrovertible  principle,  that  the  govern- 
ment of  the  United  States  may,  by  means  of  physical 
force,  exercised  through  its  official  agents,  execute  on 
every  foot  of  American  soil  the  powers  and  functions 
that  belong  to  it. " 

And,  again,  the  Supreme  Court  say : 

' '  If  all  the  inhabitants  of  a  State,  or  even  a  great 
body  of  them,  should  combine  to  obstruct  interstate 
commerce  or  the  transportation  of  the  mails,  prose- 
cutions for  such  offences  had  in  such  a  community 
would  be  doomed  in  advance  to  failure.  And  if  the 
certainty  of  such  failure  was  known,  and  the  National 
Government  had  no  other  way  to  enforce  the  freedom 
of  interstate  commerce  and  the  transportation  of  the 
mails  than  by  prosecution  and  punishment  for  inter- 
ference therewith,  the  whole  interests  of  the  nation  in 
these  respects  would  be  at  the  absolute  mercy  of  a 
portion  of  the  inhabitants  of  that  single  State. 

"But  there  is  no  such  impotency  in  the  National 
Government.  The  entire  strength  of  the  nation  may 
be  used  to  enforce  in  any  part  of  the  land  the  full  and 
free  exercise  of  all  national  powers  and  the  security 
of  all  rights  entrusted  by  the  Constitution  to  its  cares. 
The  strong  arm  of  the  National  Government  may  be 
put  forth  to  brush  away  all  obstructions  to  the  free- 
dom of  interstate  commerce  or  the  transportation  of 
the  mails.  If  the  emergency  arises,  the  Army  of  the 
nation,  and  all  its  militia,  are  at  the  service  of  the 
nation  to  compel  obedience  to  its  laws. 

"But  passing  to  the  second  question,  is  there  no 
other  alternative  than  the  use  of  force  on  the  part 
of  the  executive  authorities  whenever  obstructions 
arise  to  the  freedom  of  interstate  commerce  or  the 


43 

transportation  of  the  mails  ?  Is  the  Army  the  only 
instrument  by  which  rights  of  the  public  can  be  en- 
forced and  the  peace  of  the  nation  preserved?" 

And  Justice  Brewer,  delivering  the  opinion  of  the 
court,  then  proceeds  to  the  consideration  of  the  power 
of  the  courts  to  remove  or  restrain  obstructions  to  the 
passage  of  interstate  commerce  and  the  carrying  of 
the  mails. 

So,  when  the  enactment  of  1878  was  under  discus- 
sion in  the  Senate,  Mr.  Edmunds  said :  ' '  It  is  a  rather 
singular  statute  to  pass,  to  say  that  the  Army  of  the 
United  States  shall  not  be  used  for  the  purpose  of 
executing  the  laws — that  is,  of  course,  the  laws  of  the 
United  States — under  any  circumstances  unless  spe- 
cifically authorized  by  an  act  of  Congress  or  the  Con- 
stitution. Now  take  the  Constitution  first ;  the  Con- 
stitution says  that  the  President  of  the  United  States 
shall  be  commander-in-chief  of  the  Army  and  Navy ; 
it  says  in  the  next  place  that  he  shall  take  care  that 
the  laws  are  faithfully  executed;  that  is,  all  laws. 
Then  the  question  at  once  arises  whether  under  the 
Constitution  of  the  United  States,  saying  no  more,  it 
being  the  duty  of  the  President  to  take  care  that  the 
laws  are  faithfully  executed  and  he  being  commander- 
in-chief  of  the  Army,  the  Constitution  does  not 
expressly  aiithorize  him  to  use  the  Army  whenever 
power  is  lawfully  to  be  required  to  execute  the  laws." 

And  President  Cleveland,  replying,  July  5th,  1894,  to 
Governor  Altgeld's  protest 2  against  his  use  of  United 
States  troops  in  Chicago,  said : 

"Federal  troops  were  sent  to  Chicago  in  strict 
accordance  with  the  Constitution  and  laws  of  the 

1  In  re  Debs,  158  U.  S.,  581. 

2  Appendix  C. 


44 

United  States,  upon  the  demand  of  the  Post  Office 
Department  that  obstruction  of  the  mails  should  be 
removed,  and  upon  the  representations  of  the  judicial 
officers  of  the  United  States  that  the  process  of  the 
Federal  Courts  could  not  be  executed  through  the 
ordinary  means,  and  upon  competent  proof  that  con- 
spiracies existed  against  commerce  between  the  States. 
To  meet  these  conditions,  which  are  clearly  within  the 
province  of  Federal  authority,  the  presence  of  Federal 
troops  in  the  city  of  Chicago  was  deemed  not  only 
proper,  but  necessary,  and  there  has  been  no  intention 
of  thereby  interfering  with  the  plain  duty  of  the  local 
authorities  to  preserve  the  peace  of  the  city." 

The  course  pursued  at  this  time,  under  instructions 
from  the  Attorney  General,  was  to  file  a  bill  in  equity 
for  an  injunction  against  any  combination  in  restraint 
of  interstate  commerce,  or  interference  with  the  per- 
formance of  the  duties  of  railroads  as  common  car- 
riers under  the  interstate  commerce  act,  or  conspiracy 
to  obstruct  or  retard  the  passage  of  United  States 
mails  or  the  operation  of  the  regular  trains  carrying 
them,  that  might  exist,  and,  when  such  restraining 
order  was  not  enforcible  by  the  marshal  in  the  ordi- 
nary manner,  to  enforce  it  by  the  military  power  of  the 
Government,  on  certification  of  the  facts  to  the  author- 
ities at  Washington.  Troops,  when  thus  used,  were 
not  under  the  marshal,  nor  a  part  of  the  marshal's 
force  or  posse,  but  were  a  substitute  therefor,  and 
were  under  the  command  of  the  military  officer  in 
charge,  to  be  used  for  the  purposes  named.1 

*See  correspondence  relative  to  the  Chicago  disorders,  pub- 
lished as  an  Appendix  to  the  Annual  Report  of  the  Attorney 
General,  for  1896.  —  H.  R.  Doc.  No.  9,  part  2,  54th  Cong.,  2d 
sess.,  pp.  20,  24,  193,  etc. 


45 

But  it  may  happen  that  the  use  of  troops  will  be 
required  in  anticipation  of  forcible  resistance  to  the 
law,  which,  if  it  should  reach  that  stage,  they  might 
be  employed  in  putting  down.  Their  mere  presence, 
for  the  purpose  of  overawing  the  lawless  and  prevent- 
ing the  commission  of  the  unlawful  act,  may  be  very 
desirable.  It  is,  of  course,  better  to  prevent  the  crime 
than  to  wait  until  it  is  committed  and  injury  is  done. 
Unquestionably  the  Government  has  a  right  to  pro- 
tect itself  in  this  way.  It  would,  indeed,  be  absurd 
to  say  that  although,  when  the  execution  of  the  laws 
is  obstructed  by  organized  resistance  too  powerful  to 
suppress  by  the  ordinary  course  of  law,  the  Army 
may  be  used  in  aid  of  the  civil  power,  nevertheless  it 
may  not  be  used  in  such  a  way  as,  by  its  presence,  to 
render  unnecessary  a  resort  to  force  against  lawbreak- 
ers. Is  the  Government  so  impotent  that  it  must  wait 
for  the  crime  to  be  committed,  its  instrumentalities  ob- 
structed, its  property  destroyed,  before  it  can  act? 
May  it  not  protect  its  instrumentalities  and  property 
against  a  threatened  danger,  by  the  simple  presence 
of  the  military  power  ?  It  has  often  happened  that 
the  presence  of  a  military  force  has  had  this  effect, 
and  it  does  not  seem  possible  to  doubt  that  it  may 
lawfully  be  used  for  such  purpose.  We  are  not  here 
speaking  of  its  active  use  in  aid  of  any  civil  process, 
but  simply  of  the  protection  which  the  mere  fact  of 
its  presence  gives  to  instrumentalities  and  property  of 
the  United  States  which  the  United  States  has  the 
right  to  protect.  This  right  of  protecting  by  the  pres- 
ence of  troops  undoubtedly  exists,  equally  with  the 
right  to  use  active  force  when  the  resistance  to  the 
law  makes  it  necessary.  It  is  an  exercise  of  the  same 


46 

power — the  power  to  take  care  that  the  laws  are  faith- 
fully executed — which  the  Supreme  Court  recognized 
in  the  Neagle  case  as  authorizing  the  use  of  means, 
not  expressly  provided  by  statute,  for  the  protection 
of  its  justices  travelling  011  circuit.  The  power  to  use 
the  Army  to  give  protection  by  its  presence  is,  indeed, 
inseparable  from  the  power  to  protect  by  active  force. 
It  would  not  exist  without  the  latter. 

In  a  recent  (1897)  case  troops  were  used  at  the 
Tongue  River  Indian  Agency,  in  Montana,  for  the 
purpose  of  escorting  a  sheriff  with  an  Indian  prisoner, 
charged  with  murder,  from  the  agency  to  the  railway, 
some  distance  off,  there  being  reason  to  fear  that  the 
settlers  in  the  neighborhood  would  take  him  from  the 
sheriff  and  lynch  him.  This  was  done  by  the  military 
commander  on  the  spot,  without  any  express  author- 
ity for  such  use  of  the  troops.  It  was  a  case  where 
the  presence  of  the  troops,  or  a  show  of  force,  was 
used  to  protect  a  prisoner,  who  had  surrendered  to 
the  military  authority  and  had  been  transferred  to  the 
civil  authority,  against  a  great  danger,  and  until  it 
was  past.  Who  will  say  that  the  military  commander 
exceeded  his  authority  ? l 

It  was  at  one  time  suggested  to  the  Attorney  General 
that  if  the  mob  in  Chicago  should  again  seriously 

1  The  Army  Regulations  prescribe  that,  if  time  will  admit, 
applications  for  the  use  of  troops  must  be  forwarded  for  the  con- 
sideration and  action  of  the  President,  but  in  case  of  sudden 
and  unexpected  invasion,  insurrection,  or  riot,  endangering  the 
public  property  of  the  United  States,  or  in  case  of  attempted 
or  threatened  robbery  or  interruption  of  the  United  States  mails, 
or  other  equivalent  emergency  so  imminent  as  to  render  it  dan- 
gerous to  await  instructions  requested  through  the  speediest 
means  of  communication,  an  officer  of  the  Army  may  take  such 
action  before  the  receipt  of  instructions  as  the  circumstances  of 
the  case  and  the  law  under  which  he  is  acting  may  justify. 


47 

interfere  and  prevent  the  enforcement  of  the  United 
States  laws,  martial  law  should  be  proclaimed.  But 
he,  evidently,  did  not  believe  that  this  could  be  done 
under  the  existing  circumstances,  although  he  seems 
to  have  been  of  the  opinion  that  the  United  States 
could  proclaim  martial  law  if  the  governor  of  Illinois 
should  invoke  Federal  aid  and  thus  put  the  United 
States  in  complete  control  of  the  situation. '  ' '  Martial 
law,"  however,  is  not  anything  that  is  provided  for 
by  the  Constitution.  It  is  founded  in  necessity, 
attendant  on  the  fact  of  war.  When  opposition  to 
the  laws  of  the  United  States  amounts  to  war,  there 
will  be  a  justification  for  martial  law  in  the  locality 
of  the  war  or  where  it  is  necessary.  But  when  the 
opposition  falls  short  of  war,  the  use  of  the  military 
power  under  the  authority  of  the  Constitution  and 
the  laws  would  be  limited,  as  it  was  in  189-4,  to  the 
purpose  of  removing  the  particular  obstruction  which 
has  sprung  up,  and  enforcing  the  laws  obstructed. 
k '  Martial  law"  means  much  more  than  this.  When 
martial  law  prevails,  the  civil  power  is  superseded  by 
the  military  power;  the  military  power  becomes 
supreme;  the  safeguards  of  the  Bill  of  Rights  of  the 
Constitution  are  for  the  time  being  set  aside ;  and  the 
civilian  may  be  tried  by  military  commission.  This 
would  not  be  the  military  power  acting  in  aid  of  the 
civil  power.  Nor  would  the  conditions  existing  in 
1894  have  been  a  justification  for  it.  Only  a  condi- 
tion of  war  would  be.  "When  the  regular  course  of 
justice  is  interrupted  by  revolt,  rebellion,  or  insurrec- 
tion, so  that  the  courts  of  justice  can  not  be  kept  open, 
civil  war  exists,  and  hostilities  may  be  prosecuted  on 

1  See  page  77  of  the  publication  named  in  note  1,  p.  44,  ante. 


48 

the  same  footing  as  if  tliose  opposing  the  Govern- 
ment were  foreign  enemies  invading  the  land."1  But 
when  the  military  power  is  acting  under  the  Consti- 
tion  in  aid  of  the  civil  power,  and  the  opposition  to 
the  law  is  not  of  such  a  character  that  war  exists, 
the  civil  power  is  still  supreme,  and  the  rule  of  war 
can  not  be  applied.2 

1  The  Prize  Cases,  2  Black,  668;  Ex parte  Milligan,  4  Wall.,  2; 
also  North  American  Review,  November,  1896,  on  The  Justifica- 
tion of  Martial  Law. 

'2  But,  although  the  rule  of  war  can  not  be  applied  so  as  to  dis- 
place the  civil  power  under  such  circumstances,  these  circum- 
stances may  give  rise  to  emergencies  justifying  an  exercise  of 
power  for  which  there  would  otherwise  be  no  justification. 
When  the  Pennsylvania  militia  were  called  out  in  1892  for  the 
suppression  of  the  Homestead  riots,  the  understanding  between 
the  sheriff  and  the  commander  of  the  troops  was  that  the  troops 
would  support  the  sheriff  in  the  nature  of  a  posse  comitatus,  but 
the  commander  was  to  retain  entire  command  of  them,  to  employ 
military  methods  in  putting  down  opposition  to  the  sheriff,  and 
to  use  them  in  his  own  way ;  and  he  reserved  to  himself  full  lib- 
erty, subject  to  the  approval  of  the  commander-in-chief,  to  take 
such  action  in  cases  of  emergency  as  circumstances  might  war- 
rant.—  (Annual  report  of  Major  General  Siiowden,  commanding 
Division,  N.  G.  P.,  1892.) 

In  the  charge  of  the  Chief  Justice  of  Pennsylvania  to  the  jury 
in  the  case  of  Com.  v.  Hawkins  and  Streator,  generally  spoken  of 
as  the  lams  case  (lams  being  a  militiaman  who  had  been  pun- 
ished without  trial,  on  account  of  an  exclamation  he  had  made 
showing  his  sympathy  with  the  rioters,  and  had  thereupon  prose- 
cuted the  military  officers  who  had  caused  him  to  be  so  punished), 
he  held  that,  under  the  circumstances,  the  relations  between  the 
officers  and  the  soldiers  under  their  command  ''were  governed 
by  the  same  rules  that  would  prevail  in  case  of  actual  war,"  the 
only  difference  being  one  arising  out  of  the  difference  in  sur- 
roundings, and  which  in  the  case  at  bar  made  it  the  duty  of  the 
jury  to  determine  whether  the  officers  ordering  the  punishment 
were  actuated  by  improper  motives ;  but  that  the  jury  had  noth- 
ing to  do  with  the  question  whether  war  actually  existed  between 
the  armed  body  and  the  inhabitants  surrounding  them.  The 
trial  resulted  in  the  acquittal  of  the  defendants. 

Commenting  on  this  case,  the  commanding  general  of  the 
Pennsylvania  militia  remarked,  in  his  annual  report  for  1892, 
that,  while  it  had  been  hoped  that  the  court  would  affirm  a  plea 
to  the  jurisdiction,  the  result  was  highly  satisfactory,  since  a  full 


Remarking  on  a  passage  in  Russell  on  Crimes,  where 
it  is  said  that  for  private  persons  to  make  use  of  arms 

trial  in  open  court  showed  the  features  of  the  case  to  have  been 
greatly  exaggerated  to  the  community ,  and  resulted  in  a  verdict 
of  acquittal  at  the  hands  of  a  jury  of  the  county,  and  ' '  the  law 
as  laid  down  justifies  an  officer  in  an  emergency,  in  time  of  riot  or 
rebellion,  actual  war,  as  this  was,  in  using  extreme  measures 
to  preserve  discipline,  when  not  actuated  by  malice  but  honestly 
exercising  a  conscientious  judgment." 

The  facts  in  the  lains  case  would,  under  conditions  admitting 
of  a  calmer  examination,  perhaps  not  have  been  held  to  create  an 
emergency  justifying  the  action  taken,  and  the  statement  that 
the  troops  ' '  were  governed  by  the  same  rules  that  would  prevail 
in  case  of  actual  war  "  seems  to  be  an  unnecessary  view  to  take 
of  the  matter,  and  may  be  a  misleading  one.  But  that  such  con- 
ditions may  produce  emergencies  justifying  what  would  other- 
wise be  arbitrary  can  scarcely  be  doubted. 

The  instructions  given  for  the  use  of  troops  in  certain  locali- 
ties in  Alaska,  in  1898,  seem  to  be  based  on  this  principle.  In- 
structions, of  date,  February  9,  were  as  follows:  "The  troops  are 
sent  to  the  localities  named  in  the  interest  of  good  order,  and  of 
the  safety  of  the  persons  and  property  there  and  in  the  vicinity 
of  those  places,  which  the  troops  are  expected  to  conserve.  The 
force  should  be  used  with  kindness  and  consideration  and  within 
the  measure  of  the  strict  necessity  of  the  occasions  as  they  may 
arise.  The  President  relies  upon  the  firmness  and  wise  discre- 
tion of  the  officers  in  command  to  accomplish  the  objects  for 
which  the  troops  are  sent,  with  kindness  and  humanity,  and  the 
use  of  their  forces  lawfully  and  as  little  as  is  compatible  with 
the  duties  assigned  them. " 

Other  instructions,  of  date,  March  19,  were  as  follows:  "The 
Secretary  of  War  has  information  that  a  mob  has  taken  posses- 
sion of  the  White  Pass  road  built  by  George  A.  Brackett,  of 
Minneapolis,  and  others.  He  desires  that  their  rights  be  pro- 
tected and  mob  violence  suppressed. " 

The  parts  of  Alaska  where  the  troops  were  to  be  used  being 
unprotected  by  an  organized  local  civil  government,  it  was  evi- 
dently deemed  necessary,  in  order  that  the  localities  named 
should  not  be  handed  over  to  lawlessness,  that  the  government 
having  jurisdiction  over  the  territory  should  use  the  only  means 
at  its  disposal  to  prevent  the  commission  of  crime.  It  must  be 
regarded  as  a  temporary  measure,  based  on  necessity,  to  which 
the  legislation  of  1878  was  not  applied. 

The  remarks  of  Mr.  Justice  Woodbury,  in  his  dissenting  opin- 
ion in  the  case  of  Luther  i:  Borden,  f  Howard,  78-83,  are  of 
interest  in  this  connection. 

At  the  time  of  the  riots  in  Idaho,  in  1892,  the  governor  applied 
to  the  President  for  the  protection  guaranteed  by  the  Constitu- 

lOT'JO i 


50 

in  suppressing  riots  would  seem  only  proper  against 
such  riots  as  "  savour  of  rebellion,"  Finlanson  says 
that  it  brings  the  question  to  the  verge  of  martial  law, 

tion,  and  also  issued  a  proclamation  declaring  the  county,  which 
was  the  locality  of  the  trouble,  to  be  in  a  state  of  insurrection 
and  rebellion.  Military  aid  was  furnished  by  the  President,  and 
for  a  time  the  locality  was  under  predominant  military  rule, 
although  the  civil  power  was  not  in  fact  entirely  displaced.  It 
was  regarded  as  an  enforcement  of  martial  law,  based  on  the 
fact,  proclaimed  by  the  governor,  of  the  existence  of  insurrec- 
tion and  rebellion,  that  is,  war.  But  when  the  domestic  vio- 
lence does  not  amount  to  insurrection  or  rebellion,  the  State's 
invocation  of  aid  to  suppress  it  would  not  justify  a  resort  to 
martial  law.  This  seems  to  have  been  understood  and  observed 
during  the  riots  of  1877.  Whether  the  domestic  violence  does  in 
fact  amount  to  insurrection  or  rebellion  may  sometimes  be  a  very 
delicate  and  difficult  question  to  decide,  although  in  Ex  parte 
Milligan,  4  Wall.,  127,  the  Supreme  Court  declared  that  martial 
rule  can  never  exist  where  the  courts  are  open,  and  in  the  proper 
aiid  unobstructed  exercise  of  their  jurisdiction. 

If  correctly  reported  in  the  newspapers,  General  Gobin,  the 
commanding  general  of  the  militia  sent  to  Hazelton,  Pa.,  in 
September,  1897,  in  consequence  of  the  troubles  arising  out  of 
the  miners'  strike,  declared  that,  in  spite  of  the  warrants  issued 
for  the  arrest  of  the  sheriff's  deputies  for  the  shooting  of  miners, 
no  constables,  nor  any  civil  authority,  would  be  permitted  to 
arrest  them ;  that  the  sheriff  is  an  executive  officer,  whose  duty 
is  to  preserve  the  peace ;  that  he,  General  Gobin,  and  the  troops, 
were  subordinate  to  the  sheriff,  being  engaged  in  helping  him  to 
perform  that  duty;  and  that,  under  these  circumstances,  he 
would  not  permit  interference  with  the  sheriff's  officials.  ' '  In 
spite  of  this  fine  distinction,"  wrote  the  reporter,  "the  com- 
mander's decision  on  this  point  is  accepted  as  superseding  the 
civil  authorities  by  the  military  power. "  This  goes  to  show  the 
legal  difficulties  that  may  arise.  A  publication  on  "The  Organ- 
ized Militia  of  the  United  States  in  1897,"  by  the  Military  Infor- 
mation Division  of  the  Adjutant  General's  Office,  contains  an 
account  of  the  use  of  the  militia  on  this  occasion. 

For  an  interesting  discussion  of  ' '  The  Status  of  the  Militia  in 
Time  of  Riot  "see  two  articles  011  that  subject  in  the  Albany 
Law  Journal  of  August  3d  and  10th,  1878,  by  William  M.  Ivins. 

A  majority  of  the  States  have  express  provisions  in  their  con- 
stitutions or  statutes  for  calling  out  the  militia  ' '  to  execute  the 
laws;"  in  others  the  power  is  given,  although  not  in  this  specific 
language,  some  copying  the  Constitution  of  the  United  States  in 
this  respect,  making  the  executive  commaiider-in-chief,  and 
requiring  him  ' '  to  take  care  that  the  laws  be  faithfully  executed. " 


51 

and  recalls  to  mind  the  phrase  used  by  the  Attorney 
General  in  the  case  of  the  Lord  George  Gordon  riots, 
when  he  advised  the  Crown  to  declare  the  tumults 
rebel! ion*,  in  order  to  allow  of  the  recourse  to  military 
force  in  attacking  the  rioters  wherever  they  were 
found,  and  whether  or  not  engaged  in  felonious  out- 
rage, which  alone  would  justify  it  at  common  law. 
This,  says  Finlaiison,  shows  the  point  of  contact  be- 
tween the  scope  of  common  law  and  martial  law,  the 
one  dealing  with  mere  riot,  and  the  other  with  rebel- 
lion so  formidable  as  to  amount  to  war  and  to  require 
measures  of  war.1 

What  was  advised  by  the  Attorney  General  on  the 
occasion  of  the  Lord  George  Gordon  riots  was  actually 
done  by  the  governor  of  Idaho,  during  the  riots  of 
180 -2,  when  he,  by  proclamation,  declared  a  county, 
where  the  lawlessness  existed,  to  be  in  insurrection 
and  rebellion. 

Owing,  however,  to  our  dual  system  of  government 
the  principles  controlling  this  subject  are  in  a  great 
measure  peculiar  to  this  country.  With  the  suppres- 
sion of  ordinary  riots,  not  interfering  with  the  execu- 
tion of  the  laAvs  of  the  United  States,  nor  with  the 
processes  of  the  Federal  courts,  nor  with  the  mails  nor 
the  property2  of  the  United  States,  or,  in  general,  with 
their  instrumentalities  of  government,3  the  Federal 

1  Review  of  the  Authorities  as  to  the  Repression  of  Riot  or  Re- 
bellion, by  W.  F.  Finlanson,  p.  25. 

2  "  Your  right  to  take  such  measures  as  may  seem  to  be  necessary 
for  the  protection  of  the  public  property  is  very  clear.     *    *    * 
The  right  of  clef  ending  the  public  property  includes  also  the  right 
of  recapture  after  it  has  been  unlawfully  taken  by  another." 
(Attorney  General  Black  to  President  Buchanan,  9  Opiii..  52o. 
521.) 

8  In  a  letter  to  the  Secretary  of  War,  dated  July  5th,  1894,  the 
Attorney  General  said : 

"I  have  the  honor  to  acknowledge  the  receipt  of  copy  of  tele- 
gram to  the  Adjutant  General  of  the  United  States  Army,  from 


52 

Government  has  in  the  first  instance  nothing  to  do. 
It  is  only  when  called  on  in  the  manner  prescribed  by 

Brigadier  General  Merritt,  commanding  the  Department  of  the 
Dakota.  The  telegram  shows  that  on  the  Northern  Pacific  Rail- 
road, west  of  Fargo,  no  trains  are  running ;  that  employees  en- 
gaged by  the  company  refuse  to  work  unless  adequate  protection 
is  afforded  them ;  that  the  protection  of  the  United  States  courts 
as  now  afforded  does  not,  in  the  opinion*of  such  employees,  secure 
them  against  danger,  and  that  in  consequence  of  the  circum- 
stances above  mentioned  mail  communication  with  Forts  Keogh 
and  Custer  has  been  interrupted  since  June  25,  and  the  com- 
manding general  is  unable  to  make  the  usual  bimonthly  pay- 
ments to  his  troops  or  to  ship  supplies  to  the  military  posts  on 
the  line  of  the  Northern  Pacific. 

"  By  section  3  of  the  act  of  July  2,  1864  (13  Stat.,  365),  incor- 
porating the  Northern  Pacific  Railroad  Company,  it  is  declared 
that  certain  described  public  lands  are  granted  to  the  company 
'  for  the  purpose  of  aiding  in  the  construction  of  such  railroad 
and  telegraph  line  to  the  Pacific  coast,  and  to  secure  the  safe  and 
speedy  transportation  of  the  mails,  troops,  and  munitions  of  war, 
and  public  stores  over  the  route  of  said  line  of  railway. ' 

"By  section  11  it  is  further  enacted,  '  That  such  Northern  Pa- 
cific Railroad,  or  any  part  thereof,  shall  be  a  post  route  and  a 
military  road  subject  to  the  use  of  the  United  States  for  postal, 
military,  naval,  and  all  other  Government  service,  and  also  sub- 
ject to  such  regulations  as  Congress  may  impose  restricting  the 
charges  i'or  such  Government  transportation.' 

"By  section  20  of  the  same  act  Congress  reserves  the  right  to 
alter,  amend,  or  repeal  the  act  '  the  better  to  accomplish  the 
object  of  this  act,  namely,  to  promote  the  public  interest  and 
welfare  by  the  construction  of  such  railroad  and  telegraph  line 
and  keeping  the  same  in  working  order  and  to  secure  to  the 
Government  at  all  times  (but  particularly  in  time  of  war)  the 
use  and  benefits  of  the  same  for  postal,  military,  and  other  pur- 
poses. ' 

"These  provisions  make  the  road  of  the  Northern  Pacific  a 
military  road  of  the  United  States.  Being  such,  the  power  of 
the  President,  as  Commander-in-chief  of  the  military  forces  of 
the  United  States,  to  keep  the  road  unobstructed  and  available 
for  military  purposes  can  not  be  doubted,  and  may  properly  be 
used  to  remedy  the  mischiefs  stated  in  General  Merritt's  tele- 
gram." 

And  the  following  letter  was  sent  by  the  commanding  general 
of  the  Army  to  the  commanding  general  of  the  Department  of 
the  Columbia : 

"In  view  of  the  fact,  as  substantiated  by  communications 
received  from  the  Department  of  Justice,  from  military  official 
reports,  and  from  other  reliable  sources,  that,  by  reason  of  unlaw- 


53 

the  Constitution  that  it  can  interpose  its  power  for  the 
suppression  of  such  domestic  violence. 

As  at  Chicago,  the  existence  of  the  two  govern- 
ments, Federal  and  State,  may  lead  to  complications, 
under  such  conditions.  The  Federal  military  power, 
employed  in  aid  of  the  Federal  civil  power,  may  find 
itself  acting  within  a  State  contrary  to  the  wishes  of 
the  State's  executive.  But  that  can  only  happen  when 
the  State's  executive  fails  to  recognize  the  fact  that 
the  Federal  authority  extends  to  every  part  of  the 
United  States,  just  as  the  State's  authority  extends 
to  every  part  of  the  State,  and  that  wherever  in  the 
United  States  the  authority  of  the  laws  of  the  United 
States  is  resisted,  to  such  place  do  their  authority  to 
enforce  their  laws  extend.  The  United  States  have 
as  full  jurisdiction  within  a  State  for  the  execution 
of  their  laws,  as  the  State  has  for  the  execution  of  its 
own.  They  are  not  there  by  sufferance,  or  comity, 

ftil  obstructions  and  combinations  or  assemblages  of  persons,  it 
has  become  impracticable,  in  the  judgment  of  the  President,  to 
enforce  by  the  ordinary  course  of  judicial  proceedings  the  laws 
of  the  United  States  and  to  prevent  obstructions  of  the  United 
States  mails  and  interruptions  to  commerce  between  the  States, 
the  right  guaranteed  by  section  11  of  the  act  approved  July  2, 
1864,  constituting  the  Northern  Pacific  Railroad  'a  post  route 
and  military  road,  subject  to  the  use  of  the  United  States  for 
postal,  military,  naval,  and  all  other  Government  service,'  you 
are  directed  by  the  President  to  employ  the  military  force  under 
your  command  to  remove  obstructions  to  the  mails  and  to  exe- 
cute any  orders  of  the  United  States  court  for  the  protection  of 
property  in  the  hands  of  receivers  appointed  by  such  court,  and 
for  preventing  interruption  of  interstate  commerce,  and  to  give 
such  protection  to  said  railroad  as  will  prevent  any  unlawful 
and  forcible  obstruction  to  the  regular  and  orderly  operation  of 
said  road  '  for  postal,  military,  naval,  and  all  other  Government 
service'." 

Similar  letters  were  sent  to  'the  commanding  generals  of  the 
Departments  of  the  Platte  and  of  California  for  the  protection 
of  the  Union  Pacific  and  Central  Pacific  Railways.  (H.  R.  Doc., 
No.  9,  part  2,  54th  Cong.,  3d  sess.,  pp.  226,  233.) 


54 

but  as  a  constitutional  right.1  And  if  the  resistance 
to  the  laws  be  of  such  a  character  that  it  can  not  be 
overcome  in  the  ordinary  way,  the  Federal  Executive 
has  as  much  right  to  use  the  Federal  military  power 
to  subdue  it,  as  the  State's  executive  has  to  use  the 
military  power  of  the  State  to  subdue  a  similar  resist- 
ance to  its  own  laws. 

The  President's  use  of  the  Army  in  the  execution  of 
the  laws  on  the  occasion  of  the  Chicago  strikes  was 
commended  by  both  the  Senate  and  House  of  Repre- 
sentatives, in  resolutions  adopted  by  those  bodies.  The 
Senate  resolution  declared,  "That  the  Senate  indorses 
the  prompt  and  vigorous  measures  adopted  by  the 
President  of  the  United  States  and  the  members  of  his 
Administration  to  repulse  and  repress,  by  military 
force,  the  interference  of  lawless  men  with  the  due 
process  of  the  laws  of  the  United  States,  and  with  the 
transportation  of  the  mails  of  the  United  States,  and 
with  commerce  among  the  States. 

' '  The  action  of  the  President  and  his  Administration 
has  the  full  sympathy  and  support  of  the  law-abiding 
masses  of  the  people  of  the  United  States,  and  he  will 
be  supported  by  all  departments  of  the  Government 
and  by  the  power  and  resources  of  the  entire  nation." 

And  the  resolution  of  the  House  of  Representatives 
was  as  follows :  ' '  Resolved,  That  the  House  of  Repre- 
sentatives indorses  the  prompt  and  vigorous  efforts  of 
the  President  and  his  Administration  to  suppress  law- 
lessness, restore  order,  and  prevent  improper  inter- 
ference with  the  enforcement  of  the  laws  of  the  United 
States,  and  with  the  transportation  of  the  mails  of  the 
United  States  and  with  interstate  commerce;  and 


lExparte  Siebold,  100  U.  S.,  394. 


55 

pledges  the  President  hearty  support,  and  deems  the 
success  that  has  already  attended  his  efforts  as  cause 
for  public-  and  general  congratulation." 

These  were  very  important  resolutions,  indicating, 
as  they  do,  the  understanding  at  that  time  of  the  two 
Houses  of  Congress  with  reference  to  the  power  of  the 
President  to  use  the  military  forces  of  the  United 
States  in  the  execution  of  the  laws ;  although  the  un- 
derstanding probably  was  that  their  use  was  pursuant 
to  the  statutory  authority  contained  in  the  Revised 
Statutes.  There  was  no  question  as  to  the  source  of 
the  authority. 

This  use  of  Federal  troops  was,  however,  also  in 
accord  with  the  views  of  the  Supreme  Court  in  the 
Neagle  case,  as  to  the  power  of  the  President.  Or,  as 
it  lias  been  elsewhere  expressed:  "The  President  is, 
of  course,  to  take  care  that  the  laws  are  faithfully 
executed.  But  how?  By  Avhat  means ?  Only  by  such 
means  as  the  Constitution  and  laws  themselves  have 
given  him  power  to  employ.  That  is,  by  causing  pro- 
ceedings to  be  instituted  according  to  law,  against 
those  who  violate  the  law,  and  by  employing  whatever 
force  may  be  necessary  to  overcome  all  resistance  that 
is  offered  to  their  execution." ' 

The  President's  constitutional  duty  to  take  care  that 
the  laws  are  faithfully  executed  must  be  carried  out 
by  the  means  placed  in  his  hands  by  or  under  the  Con- 
stitution. If  Congress  does  not  prescribe  means,  he 
must  use  such  means  as  the  Constitution  supplies  him 
with.  These  means  are  not  specifically  set  forth  in 
the  Constitution.  They  are  incidental  to  and  implied 

1  Paine,  J.,  In  re  Kemp,  16  Wis.,  414.  See  also  Story,  Const., 
sees.  1489-1493 ;  and  Kent's  Commentaries,  Vol.  I,  p.  282. 


56 

in  his  general  powers.  Nor  is  such  a  conclusion  un- 
authorized by  the  character  of  the  instrument.  In 
the  language  of  Chief  Justice  Marshall,  '  'A  constitu- 
tion to  contain  an  accurate  detail  of  all  the  subdivi- 
sions of  which  its  great  powers  will  admit,  and  of  all 
the  means  by  which  they  may  be  carried  into  execu- 
tion, would  partake  of  the  prolixity  of  a  legal  code, 
and  could  scarcely  be  embraced  by  the  human  mind. 
It  would  probably  never  be  understood  by  the  public. 
Its  nature,  therefore,  requires  that  only  its  great  out- 
lines should  be  marked,  its  important  objects  desig- 
nated and  the  minor  ingredients  which  compose  those 
objects  be  deduced  from  the  nature  of  the  objects  them- 
selves. That  this  idea  was  entertained  by  the  f  ramers 
of  the  American  Constitution  is  not  only  to  be  inferred 
from  the  nature  of  the  instrument,  but  from  the  lan- 
guage."1 

By  the  last  clause  of  the  legislation  of  1878  it  was 
prescribed  that  no  money  ' '  appropriated  by  this  act " 
should  be  used  to  pay  the  expenses  incurred  in  the 
employment  of  any  troops  in  violation  of  it.  This 
provision  related,  of  course,  only  to  the  period  covered 
by  the  appropriation  act  in  which  it  is  found.  Con- 
gress may,  by  disbanding  the  Army,  render  it  impos- 
sible for  the  President  to  resort  to  his  constitutional 
power  as  executive  and  commander-in-chief  of  em- 
ploying the  Army  in  aid  of  the  civil  power,  in  the 
execution  of  the  laws,  or  may  couple  an  appropriation 
for  the  support  of  the  Army  with  a  condition  as  to  the 
use  of  the  money  appropriated ;  but,  if  it  be  true  that 
the  Constitution  directly  vests  the  President  with  the 
duty  and  power  we  have  been  discussing,  it  must  follow 

1  McCulloch  v.  Md.,  4  W.,  407. 


57 

that  Congress  can  not  make  the  exercise  of  such  power 
illegal.  It  may  prevent  its  exercise,  but  it  can  not 
make  it  illegal. 

The  framers  of  the  Constitution  relied  on  the  con- 
trol of  Congress  over  appropriations  as  the  great  safe- 
guard against  a  misuse  of  the  Army.  It  was  believed 
that  to  refuse  to  vote  supplies  would  be  to  disband  the 
Army.  We  have  seen  that  for  a  short  time  the  Army 
has  been  maintained  without  such  vote.  But,  never- 
theless, this  was  the  safeguard  relied  on,  and  there 
was  no  attempt  to  create  another  by  investing  Con- 
gress with  direct  control  over  the  President  in  the 
discharge  of  his  constitutional  duty  to  take  care  that 
the  laws  be  faithfully  executed. 

There  is  not  now  any  fear  of  an  abuse  of  this  power. 
In  the  early  days  of  our  history  a  "standing  army" 
regarded  with  fear.  It  was  natural  that  the 
framers  of  the  Constitution,  with  their  knowledge  of 
the  past  and  anxiety  for  the  future,  should  have  this 
fear.  But,  with  our  experience,  is  it  reasonable?1 

1  Mr.  Justice  Miller,  in  his  Lectures  on  the  Constitution,  says 
that  the  belief,  which  was  entertained  by  some  at  the  time  of 
the  adoption  of  the  Constitution,  that  there  was  danger  in  the 
great  power  vested  in  the  Executive,  though  natural  enough  at 
the  time,  was  a  very  great  mistake ;  that  the  nearer  we  approach 
to  individual  responsibility  in  the  Executive,  the  nearer  will  it 
come  to  perfection :  that  of  the  three  branches,  the  executive  has 
been  the  most  shorn  of  the  powers  granted  it  by  the  Constitu- 
tion: and  that  of  all  the  delusive  ideas,  or  fallacies,  that  ever 
entered  anybody's  brain,  the  most  unfounded  is  this — that  any 
President  can  ever  make  himself  a  perpetual  dictator,  either  in 
our  time  or  generation  or  in  those  which  are  to  come. 

See  also  Foster's  Commentaries  on  the  Constitution,  page  242, 
et  seq. 

A  most  remarkable  encroachment  on  the  constitutional  powers 
of  the  President  was  the  legislation  contained  in  the  second  sec- 
tion of  the  Army  Appropriation  Act,  of  March  2,  1867,  whereby 
it  was  prescribed  : 

"That  the  headquarters  of  the  General  of  the  Army  of  the 
United  States  shall  be  at  the  city  of  "Washington,  and  all  orders 


58 

What  fair-minded  man  can  now  say  that  our  standing 
Army  is  a  menace,  instead  of  a  protection,  to  our 
institutions  ?  Is  not  what  Macaulay  wrote  applicable 
in  substance  to  our  condition  also ?  "It  was  proved 
by  experience  that,  in  a  well-constituted  society,  pro- 
fessional soldiers  may  be  *  *  *  submissive  to  the 
civil  power.  *  *  *  It  is  perhaps  because  the  army 
became  thus  gradually,  and  almost  imperceptibly,  one 
of  the  institutions  of  England,  that  it  has  acted  in 

and  instructions  relating  to  military  operations  issued  by  the 
President  or  Secretary  of  War  shall  be  issued  through  the  Gen- 
eral of  the  Army,  and,  in  case  of  his  inability,  through  the  next 
in  rank.  The  General  of  the  Army  shall  not  be  removed,  sus- 
pended, or  relieved  from  command,  or  assigned  to  duty  elsewhere 
than  at  said  headquarters,  except  at  his  own  request,  without 
the  previous  approval  of  the  Senate ;  and  any  orders  or  instruc- 
tions relating  to  military  operations  issued  contrary  to  the 
requirements  of  this  section  shall  be  null  and  void ;  and  any  offi- 
cer who  shall  issue  orders  or  instructions  contrary  to  the  pro- 
visions of  this  section  shall  be  deemed  guilty  of  a  misdemeanor 
in  office ;  and  any  officer  of  the  Army  who  shall  transmit,  con- 
vey, or  obey  any  orders  or  instructions  so  issued  contrary  to  the 
provisions  of  this  section,  knowing  that  such  orders  were  so 
issued,  shall  be  liable  to  imprisonment  for  not  less  than  two  nor 
more  than  twenty  years,  upon  conviction  thereof  in  any  court  of 
competent  jurisdiction." 

This  provision,  although,  as  the  President  declared,  it  deprived 
him  of  his  constitutional  functions  as  Commander-in-chief  of 
the  Army,  he  was  compelled  to  countenance,  or  otherwise,  by 
withholding  his  signature  from  the  act,  defeat  necessary  appro- 
priations. But,  while  thus  sanctioning  it,  he  did  not  quietly 
submit  to  it.  Thus  we  find  him,  by  proclamation  of  September 
3d,  1867,  declaring  that ' '  all  officers  of  the  Army  *  *  *  of  the 
United  States,  in  accepting  their  commissions  under  the  laws  of 
Congress  and  the  rules  and  articles  of  war,  incur  an  obligation 
to  observe,  obey,  and  follow  such  directions  as  they  shall  from 
time  to  time  receive  from  the  President  or  the  General,  or  other 
superior  officers  set  over  them,  according  to  the  rules  and  disci- 
pline of  war,"  and  enjoining  upon  officers  of  the  Army  (directly, 
and  not  through  the  medium  of  the  commanding  general  of  the 
Army, )  to  assist  and  sustain  the  courts  and  other  civil  authori- 
ties of  the  United  States  in  a  faithful  administration  of  the  laws 
thereof,  and  in  the  judgments,  decrees,  mandates,  and  processes 
of  the  courts  of  the  United  States.  The  legislation  was  repealed 
in  1870. 


59 

such  perfect  harmony  with  all  her  other  institutions, 
has  never  once,  during  a  hundred  and  sixty  years, 
been  untrue  to  the  throne  or  disobedient  to  the  law, 
has  never  once  defied  the  tribunals  or  overawed  the 
constituent  bodies." 

Such  a  spirit  our  Army  has  inherited.  It  has  never 
questioned  its  subordination  to  the  civil  power  in  time 
of  peace ;  but,  on  the  contrary,  it  has  been  taught,  in 
the  language  of  the  Army  Regulations  of  1825  (pre- 
pared by  General  Scott),  that,  "  Respect  and  obedience 
to  the  civil  authorities  of  the  land,  is  the  duty  of  all 
citizens,  and  more  particularly  of  those  who  are  armed 
in  the  public  service."1 

If  there  was  reason  for  the  legislation  of  1878,  in 
the  use  to  which  the  Army  had  then  been  put  by  the 
Executive,  it  threatens  us  with  no  danger,  because  the 
conditions  can  not  recur. 

1  See  also  the  Army  Regulations  of  1847. 


APPENDIX    A. 

[Extract  from  the  speech  of  Hon.   H.    B.   Banning,  delivered 
March  2,   1877,  "The  Object  of  Our  Army."] 


Mr.  Speaker,  there  is  a  strange  confusion  in  the  minds  of  the 
people,  shared  by  some  eminent  officials,  as  to  what  are  the  uses 
for  which  our  regular  Ariny  was  created  and  what  the  duties 
and  responsibilities  of  the  individual  officer  or  private. 

For  the  functions  to  be  performed  by  the  Army  we  must  look 
to  the  "Constitution  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,"  which  are  declared  by 
Article  VI  of  that  instrument  to  be  "the  supreme  law  of  the 
land. " 

We  find  in  section  2  of  Article  II  that — 

"The  President  shall  be  commander-in-chief  of  the  Army  and 
Navy  of  the  United  States  and  of  the  militia  of  the  several  States 
when  called  into  the  actual  service  of  the  United  States. " 

But  as  such  comniander-in-chief  he  has  no  other  or  further 
powers  than  such  as  may  by  act  of  Congress  agreeably  to  the 
provisions  of  the  Constitution  be  devolved  upon  him. 

The  power  to  declare  war ;  to  provide  and  maintain  a  navy ;  to 
make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces ;  to  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrection,  and  repel  invasions ; 
to  provide  for  organizing,  arming,  and  disciplining  the  militia, 
etc.,  and  all  other  powers  connected  with  the  Army  and  Navy 
except  the  single  one  before  quoted  are  vested  in  the  Congress  of 
the  United  States.  The  Army  can  be  used  for  national  purposes 
to  execute  the  laws  of  the  Union,  suppress  insurrection,  and  repel 
invasions,  and  also  aid  the  States,  under  section  4  of  Article  IV, 
' '  to  protect  each  of  them  against  invasion,  and  on  application  of 
the  legislature,  or  of  the  executive  when  the  legislature  can  not 
be  convened,  against  domestic  violence. "  The  manner  and  occa- 
sion of  such  use,  however,  are  not  discretionary  with  the  Presi- 
dent as  commander-in-chief,  but  are  clearly  defined  by  acts  of 
Congress. 

(61) 


62 

In  relation  to  the  use  of  the  Army  in  the  aid  of  the  State  gov- 
ernments, by  the  act  of  February  28,  1795,  and  March  3,  1807 
(section  5297,  Revised  Statutes,  United  States),  it  is  provided 
that— 

' '  In  case  of  an  insurrection  in  any  State  against  the  govern- 
ment thereof  it  shall  be  lawful  for  the  President,  on  application 
of  the  legislature  of  such  State,  or  of  the  executive  when  the 
legislature  can  not  be  convened,  to  call  for  such  number  of  the 
militia  of  any  other  State  or  States  which  may  be  applied  for  as 
he  deems  sufficient  to  suppress  such  insurrection;  or,  on  like 
application,  to  employ  for  the  same  purposes  such  part  of  the 
land  and  naval  forces  of  the  United  States  as  he  deems  neces- 
sary. " 

Section  5300,  Revised  Statutes,  United  States  (act  of  February 
28,  1795),  provides  that— 

"  Whenever  in  the  judgment  of  the  President  it  becomes  nec- 
essary to  use  the  military  forces  under  this  title  the  President 
shall  forthwith,  by  proclamation,  command  the  insurgents  to 
disperse  and  retire  peaceably  to  their  respective  abodes  within  a 
limited  time. " 

The  first  occasion  on  which  it  became  necessary  to  consider 
the  propriety  of  exercising  these  most  important  constitutional 
and  legal  functions  arose  in  the  year  1842,  under  the  administra- 
tion of  President  Tyler,  in  the  case  of  the  Dorr  rebellion  in 
Rhode  Island.  Daniel  Webster  was  then  Secretary  of  State,  and 
matters  growing  out  of  the  relations  between  the  Federal  Gov- 
ernment and  the  several  States  of  the  Union  were  conducted 
through  the  State  Department.  In  those  days  the  Attorney 
General  of  the  United  States  was  not  claimed  to  be,  as  he  now 
is,  the  virtual  commander-in-chief  of  the  Army.  The  circum- 
stances of  the  case  briefly  stated  are  as  follows : 

In  1842  a  large  majority  of  the  people  of  Rhode  Island,  acting 
outside  of  the  forms  of  law,  established  a  state  government  and 
elected  Thomas  W.  Dorr  their  governor.  On  the  4th  of  April, 
1842,  Samuel  W.  King,  legal  governor  of  Rhode  Island,  addressed 
the  President  of  the  United  States,  stating  that  ' '  the  State  of 
Rhode  Island  is  threatened  with  domestic  violence,"  that  the 
legislature  could  not  be  convened,  and  calling  upon  the  President 


63 

for  ' '  the  protection  which  is  required  by  the  Constitution  of  the 
United  States. " 

In  another  letter  of  the  same  date  addressed  to  the  President, 
Governor  King  recited  the  facts  which  led  him  to  make  the 
application  for  Federal  assistance  and  requested  that  "such 
precautionary  measures  may  be  taken  by  the  Government  of  the 
United  States  as  may  afford  us  that  protection  which  the  Consti- 
tution of  the  United  States  requires.  *  *  *  The  Govern- 
ment of  the  United  States  has  the  power  to  prevent  as  well  as 
to  defend  us  from  violence.  The  protection  provided  by  the 
Constitution  of  the  United  States  will  not  be  effectual  unless 
such  precautionary  measures  may  be  taken  as  are  necessary  to 
prevent  lawless  men  from  breaking  out  into  violence  as  well  as 
to  protect  the  State  from  further  violence  after  it  has  broken 
out.''  President  Tyler,  in  a  communication  prepared  by  Daniel 
Webster,  declined  to  interfere.  He  said,  "For  the  regulation 
of  my  conduct  on  any  interposition  which  I  may  be  called  upon 
to  make  between  the  government  of  a  State  and  any  portion  of 
the  citizens  who  may  assail  it  with  domestic  violence,  or  may  be 
in  actual  insurrection  against  it,  I  can  only  look  to  the  Constitu- 
tion and  laws  of  the  United  States,  which  plainly  declare  the 
obligations  of  the  executive  department,  and  leave  it  no  alterna- 
tive as  to  the  course  it  shall  pursue."  After  reciting  section  4  of 
Article  IV  of  the  Constitution  and  the  acts  of  1795  and  1807, 
before  quoted,  he  said : 

"  By  a  careful  consideration  of  the  above-recited  acts  of  Con- 
gress your  excellency  will  not  fail  to  see  that  no  power  is  vested 
in  the  Executive  of  the  United  States  to  anticipate  insurrection- 
ary movements  against  the  government  of  Rhode  Island,  so  as  to 
sustain  the  interposition  of  the  military  authority ;  but  that  there 
must  be  an  actual  insurrection,  manifested  by  lawless  assem- 
blages of  the  people  or  otherwise,  to  whom  a  proclamation  may 
be  addressed,  and  who  may  be  required  to  betake  themselves  to 
their  respective  abodes." 

On  the  4th  of  May,  1842,  the  legislature  of  Rhode  Island  passed 
resolutions  calling  upon  the  President  for  assistance  to  suppress 
the  insurrection  against  the  State,  and  reciting  that — 

"A  portion  of  the  people  of  this  State,  for  the  purpose  of  sub- 
verting the  laws  and  existing  government  thereof,  have  framed 


64 

a  pretended  constitution,  and  for  the  same  unlawful  purposes 
have  met  in  lawless  assemblages  and  elected  officers  for  the 
future  government  of  this  State;  and  whereas  the  persons  so 
elected,  in  violation  of  law,  but  in  conformity  to  the  said  pre- 
tended constitution,  have,  on  the  3d  day  of  May  instant,  organ- 
ized themselves  into  executive  and  legislative  departments  of 
government,  and  under  oath  assumed  the  duties  and  exercise  of 
said  powers ;  and  whereas,  in  order  to  prevent  the  due  execution 
of  the  laws,  a  strong  military  force  was  called  out,  and  did  array 
themselves  to  protect  the  said  unlawful  organization  of  govern- 
ment and  to  set  at  defiance  the  due  enforcement  of  the  laws. " 

Did  the  President  then  interfere?  No,  sir;  he  still  declined, 
and  in  a  letter  dated  May  7,  gave  the  best  of  reasons  for  so  doing. 
He  says  ' '  that  he  has  information  that  leads  him  to  believe  that 
the  danger  of  domestic  violence  is  hourly  diminishing." 

"I  freely  confess,"  he  says — 

"that  I  should  experience  great  reluctance  in  employing  the 
military  power  of  this  Government  against  any  portion  of  the 
people;  but,  however  painful  the  duty,  I  have  to  assure  your 
excellency  that  if  resistance  be  made  to  the  execution  of  the 
laws  of  Rhode  Island  by  such  force  as  the  civil  posse  shall  be 
unable  to  overcome,  it  will  be  the  duty  of  this  Government  to 
enforce  the  constitutional  guarantee. " 

On  the  9th  of  May,  1842,  the  President  addressed  Governor 
King  of  Rhode  Island  a  letter,  in  which  he  counseled  peaceful 
measures. 

"Why  urge  matters,"  he  says— 

"  to  an  extremity  ?  If  you  succeed  by  the  bayonet  you  succeed 
against  your  own  fellow-citizens,  and  by  the  shedding  of  kindred 
blood.  *  *  *  A  resort  to  force  will  engender  for  years  to 
come  feelings  of  animosity." 

On  the  25th  of  May  Governor  King  addressed  the  President, 
stating  that  the  Dorr  government,  in  addition  to  companies  of 
men  in  Rhode  Island,  was  organizing  bands  of  men  in  Massachu- 
setts, Connecticut,  and  New  York.  Therefore  Governor  King 
asked  for  the  interposition  of  the  Federal  authority,  and  that  the 
President  might  place  a  sufficient  body  of  troops  in  the  State, ' '  to 
be  subject  to  the  requisition  of  the  executive  of  this  State 


65 

whenever,  in  his  opinion,  the  exigency  of  the  case  should  require 
their  assistance." 

This  request  the  President  declined,  in  a  letter  dated  the  28th 
of  May,  in  which  he  said,  "should  the  necessity  of  the  case 
require  the  interposition  of  the  authority  of  the  United  States, 
it  will  be  rendered  in  the  manner  prescribed  by  the  laws." 

On  the  29th  of  June  the  President  of  the  United  States  being 
informed  "that  the  difficulties  in  Rhode  Island  have  arrived  at 
a  crisis  "  which  require  the  interposition  of  Federal  authority  in 
support  of  the  State,  directed  the  Secretary  of  War  to  proceed 
to  Rhode  Island  and  in  the  event  of  the  necessary  requisition 
being  made  by  the  governor  of  Rhode  Island  to  issue  a  procla- 
mation prepared  by  Daniel  Webster,  Secretary  of  State,  and 
signed  by  Webster  and  the  President,  "commanding  all  insur- 
gents and  all  persons  connected  with  the  insurrection  to  disband. " 
This  proclamation,  however,  was  never  issued,  the  Dorr  rebellion 
having  been  suppressed  by  the  State  authorities. 

In  compliance  with  a  resolution  of  the  House  of  Representa- 
•t'the  23d  of  March,  1844  (Executive  Document  No.  22.Vi, 
the  President  informed  the  House  ' '  that  the  Executive  did  not 
deem  it  his  duty  to  interfere  with  the  naval  and  military  forces 
of  the  United  States  in  the  late  distiirbance  in  Rhode  Island ;  that 
no  orders  were  issued  for  the  employment  of  troops  in  that  State 
except  to  strengthen  the  garrison  at  Fort  Adams ;  that  no  orders 
were  given  to  any  officer  or  officers  of  the  Army  or  Navy  to  re- 
port themselves  to  the  charter  government ;  that  the  Executive 
was  at  no  time  convinced  that  the  casn*  fti-ilcrits  had  arisen  which 
required  the  interposition  of  the  military  or  naval  power." 

Taking  strong  ground  against  the  interference  of  the  Executive 
in  State  questions,  he  said: 

"Actuated  by  selfish  motives  he  (the  Executive)  might  become 
the  great  agitator,  fomenting  assault  upon  the  State  constitutions 
and  declaring  the  majority  of  to-day  to  be  the  minority  of  to- 
morrow, and  the  minority  in  its  turn  the  majority,  before  whose 
decrees  the  established  order  of  things  in  the  State  should  be 
subverted.  Revolution,  civil  commotion,  and  bloodshed  would 
be  the  inevitable  consequences.  The  provision  in  the  Constitu- 
tion intended  for  the  security  of  the  States  would  thus  be  turned 
into  the  instrument  of  their  destruction ;  the  President  would 

16796 5 


66 

become  in  fact  the  great  constitution-maker  for  the  States  and 
all  power  would  be  vested  in  his  hands. " 

It  will  be  seen  upon  a  thorough  examination  of  this  case  that 
President  Tyler,  acting  under  the  advice  of  Daniel  Webster,  de- 
nied the  power  of  the  Federal  Government  to  interfere  in  a  cause 
of  merely  "threatened  domestic  violence"  or  to  "anticipate  in- 
surrectionary movements  "  against  the  State,  but  claimed  that 
there  must  be  an  "actual  insurrection"  and  "lawless  assem- 
blages to  whom  a  proclamation  may  be  addressed ; "  that  resist- 
ance must  first  be  made  to  the  execution  of  the  laws  of  the  State 
by  such  force  as  the  civil  posse  shall  be  unable  to  overcome ;  that 
he  could  not  place  any  part  of  the  Army  of  the  United  States 
subject  to  the  orders  of  the  State  executive  to  be  used  whenever 
in  his  opinion  the  exigency  of  the  case  should  require,  and  that 
a  proclamation  must  first  be  addressed  to  the  insurgents  demand- 
ing them  to  disperse. 

How  different  has  been  the  practice  under  the  present  admin- 
istration of  oar  Government.  At  Columbia  and  New  Orleans 
United  States  troops  have  been  placed  under  the  orders  of  State 
executives  and  of  subordinate  State  officers  without  previous 
proclamations  and  without  any  lawless  assemblages  against  whom 
to  direct  them.  There  has  been  a  constant  and  persistent  inter- 
ference in  State  matters  by  the  Army ;  State  legislatures  legally 
elected  have  been  dispersed ;  troops  have  been  used  as  a  police  to 
protect  State  returning  boards  in  the  perpetration  of  frauds, 
without  any  regard  to  the  requirements  of  the  acts  of  Congress 
regulating  the  manner  and  occasion  of  such  interposition,  and  in 
defiance  of  law  and  the  decisions  of  the  highest  tribunal  in  the 
land.  The  Army  has  been  used  as  a  State  constabulary.  In 
Louisiana  to-day  the  Army  of  the  United  States  is  engaged  in 
keeping  the  peace  between  two  State  governments,  neither  of 
which  has  been  recognized  by  the  President,  and  in  inducting  into 
office  from  time  to  time  different  State  officers  who  have  been 
removed  from  their  offices,  and  their  interference  is  continued, 
not  upon  the  ground  that  either  State  government  is  the  lawful 
one,  but  because  the  Army  has  been  directed  by  the  President  to 
preserve  the  present  chaotic  condition  of  affairs  in  that  State 
until  he  shall  make  up  his  mind  which  State  government  to 
recognize. 


67 

And  yet,  sir,  the  President,  when  called  to  an  account  for  the 
use  of  troops  in  Louisiana,  as  far  back  as  1874,  said  in  his  mes- 
sage to  Congress,  dated  January  13,  1875: 

•  •  I  am  well  aware  that  any  military  interference  by  the  officers 
or  troops  .of  the  United  States  with  the  organization  of  a  State 
legislature  or  any  of  its  proceedings,  or  with  any  civil  department 
of  the  Government,  is  repugnant  to  our  ideas  of  government. 
I  can  conceive  of  no  case  not  involving  rebellion  or  insurrection 
where  such  interference  by  authority  of  the  General  Government 
ought  to  be  permitted  or  can  be  justified." 

Notwithstanding  such  expressions  of  opinion  by  the  President, 
our  Army,  degraded  from  its  high  position  of  the  defenders  of 
the  country  from  foreign  and  domestic  foes,  has  been  used  as  a 
police;  has  taken  possession  of  polls  and  controlled  elections; 
has  been  sent  with  fixed  bayonets  into  the  halls  of  State  legisla- 
tures in  time  of  peace  and  under  the  pretense  of  threatened  out- 
break ;  has  been  placed  under  the  control  of  subordinate  State 
officials,  and,  under  the  instructions  of  the  Attorney  General, 
has  been  notified  to  obey  the  orders  of  deputy  United  States 
marshals,  "general  and  special,"  appointed  in  swarms  to  do 
dirty  work  in  a  presidential  campaign.  I  call  your  attention  to 
the  late  order  of  the  Attorney  General  concerning  the  recent  use 
of  the  Army  during  the  elections,  from  which  I  quote  the  fol- 
lowing paragraphs : 

' '  In  this  connection  I  advise  that  you  and  each  of  your  depu- 
ties, general  and  special,  have  a  right  to  summon  to  your  assist- 
ance in  preventing  and  quelling  disorder,  every  person  in  the 
district  above  fifteen  years  of  age,  whatever  may  be  their  occu 
pation.  whether  civilians  or  not,  and  including  the  military  of 
all  denominations,  militia  soldiers,  marines,  all  of  whom  are 
alike  bound  to  obey  you.  The  fact  that  they  are  organized  as 
military  bodies  (whether  of  the  State  or  of  the  United  States), 
under  the  immediate  command  of  their  own  officers,  does  not  in 
any  wise  affect  their  legal  character.  They  are  still  the  posse 
com  it  at  us.  I  prefer  to  quote  the  above  statement  of  the  law 
upon  this  point  from  an  opinion  of  my  predecessor,  Attorney 
General  Gushing,  because  it  thus  appears  to  have  been  well  set 
tied  for  many  years.  (6  Opin. ,  466 ;  May  27.  1854. )  I  need  hardly 
add  that  there  can  be  no  State  law  or  State  official  in  this  country 


68 

who  has  jurisdiction  to  oppose  you  in  discharging  your  official 
duties  under  the  laws  of  the  United  States.  If  such  interference 
shall  take  place  (a  thing  not  anticipated),  you  are  to  disregard  it 
entirely.  The  laws  of  the  United  States  are  supreme,  and  so, 
consequently,  is  the  action  of  officials  of  the  United  States  in  en- 
forcing them.  There  is,  as  virtually  you  have  already  been  told, 
no  officer  of  a  State  whom  you  may  not  by  a  summons  embody 
in  your  own  posse,  and  any  State  posse  already  embodied  by  a 
sheriff  will,  with  such  sheriff,  be  obliged  upon  your  summons  to 
become  a  part  of  a  United  States  posse,  and  obey  you  or  your 
deputy  acting  virtute  ojfici." 

The  Attorney  General  based  his  authority  for  such  use  of  the 
Army  upon  the  opinion  of  Attorney  General  Gushing,  given  on 
the  27th  of  May,  1854,  concerning  the  enforcement  of  the  fugi- 
tive-slave law,  an  opinion  questionable  at  best,  but  strangely 
perverted  by  the  Attorney  General.  What  Attorney  General 
Gushing  says  is  merely  that  being  a  soldier  of  the  United  States 
does  not  exempt  a  man  from  being  called  upon  by  the  proper 
authorities  to  act  like  any  other  citizen  as  a  part  of  a  posse  comi- 
tatus.  He  nowhere  intimates  that  the  soldier  as  a  part  of  the 
Army  or  that  the  Army  as  such  shall  be  used  by  a  marshal  in 
direct  violation  of  the  Constitution. 

From  this  opinion  of  Attorney  General  Gushing,  which,  as  I 
have  said,  the  Attorney  General  strangely  perverts,  he  draws  the 
most  extraordinary  conclusions.  Under  his  opinion  issued  as 
Order  No.  96,  any  marshal  of  the  United  States,  or  deputy  or 
special  marshal,  may,  upon  his  own  private  judgment,  order  any 
officer,  even  the  General  of  the  Army,  to  obey  his  command. 

The  General  of  the  Army  seems  to  have  held  very  different 
views,  for  in  his  order  to  the  Army  promulgating  it  he  so  modi- 
fied this  opinion  of  the  Attorney  General  that  he  occupies  pre- 
cisely the  same  grounds  that  I  advocate.  I  take  pleasure  in 
calling  your  attention  to  what  he  says.  It  reads  as  follows : 

"The  obligation  of  the  military  (individual  officers  and  sol- 
diers) in  common  with  all  citizens  to  obey  the  summons  of  a  mar- 
shal or  sheriff  must  be  held  subordinate  to  their  paramount  duty 
as  members  of  a  permanent  military  body.  However,  the  troops 
can  act  only  in  their  proper  organized  capacity,  under  their  own 
officers,  and  in  obedience  to  the  immediate  orders  of  those  officers. 


60 

The  officer  commanding  troops  summoned  to  the  aid  of  a  mar- 
shal or  sheriff  must  also  judge  for  himself  and  upon  his  own  offi- 
cial responsibility  whether  the  service  required  of  him  is  lawful 
and  necessary  and  compatible  with  the  proper  discharge  of  his 
ordinary  military  duties,  and  must  limit  his  action  absolutely  to 
proper  aid  in  execution  of  the  [1]  awful  precept  exhibited  to  him 
by  the  marshal  or  sheriff." 

This  carefully  worded  instruction  of  General  Sherman  reminds 
one  of  the  better  days  of  the  Republic. 

Concerning  the  powers  of  the  United  States  in  connection  with 
matters  relating  solely  to  the  States,  and  not  by  the  Constitution 
placed  under  the  paramount  control  of  the  United  States,  it  may 
not  be  amiss  to  refer  to  the  decision  of  the  Supreme  Court  of  the 
United  States  in  the  case  of  Cruikshank,  2  Otto,  page  542.  Mr. 
Chief  Justice  Waite  delivered  the  opinion  of  the  court  (declaring 
the  enforcement  act  of  1870  unconstitutional),  from  which  I 
quote  the  following  paragraph,  which  will  be  found  on  page  556: 

"Certainly  it  will  not  be  claimed  that  the  United  States  have 
the  power  or  are  required  to  do  mere  police  duty  in  the  States. 
If  a  State  can  not  protect  itself  against  domestic  violence,  the 
United  States  may,  upon  the  call  of  the  executive,  when  the  leg- 
islature can  not  be  convened,  lend  their  assistance  for  that  pur- 
1 1«  86.  This  is  a  guarantee  of  the  Constitution  (Article  IV,  section 
4),  but  it  applies  to  no  case  like  this.  ' 


APPENDIX  B. 

[Army  Regulations,  Article  LIT.] 


EMPLOYMENT  OF  TROOPS  ix  THE  ENFORCEMENT  OF  THE  LAWS. 

486.  It  is  unlawful  to  employ  any  part  of  the  Army  of  the 
United  States,  as  a  posse  comitatus  or  otherwise,  for  the  purpose 
of  executing  the  laws,  except  in  such  cases  and  under  such  cir- 
cumstances as  such  employment  of  said  force  may  be  expressly 
authorized  by  the  Constitution  or  by  act  of  Congress ;  and  any 
person  willfully  violating  this  provision  will  be  deemed  guilty  of 
a  misdemeanor,  and,  on  conviction  thereof,  will  be  punishable 
by  a  fine  not  exceeding  §10,000  or  imprisonment  not  exceeding 
two  years,  or  by  both  such  fine  and  punishment. 

487.  The  provisions  of  the  Constitution  and  of  acts  of  Congress 
understood  as  intended  to  be  excepted  from  the  operation  of  the 
preceding  paragraph,  authorizing  the  employment  of  the  military 
forces  for  the  purpose  of  executing  the  laws,  are  as  follows : 

ARTICLE  IV  OF  THE  CONSTITUTION. 

"SEC.  4.  The  United  States  shall  guarantee  to  every  State  in 
this  Union  a  republican  form  of  government,  and  shall  protect 
each  of  them  against  invasion ;  and  on  application  of  the  legisla- 
ture, or  of  the  executive,  (when  the  legislature  can  not  be  con- 
vened,) against  domestic  violence." 

REVISED  STATUTES  OF  THE  UNITED  STATES. 
CIVIL  RIGHTS. 

"SEC.  1984.  The  commissioners  authorized  to  be  appointed  by 
the  preceding  section  [sec.  1983]  are  empowered,  within  their 
respective  counties,  to  appoint,  in  writing,  under  their  hands, 
one  or  more  suitable  persons,  from  time  to  time,  who  shall  exe- 
cute all  such  warrants  or  other  process  as  the  commissioners  may 
issue  in  the  lawful  performance  of  their  duties,  and  the  persons 
so  appointed  shall  have  authority  to  summon  and  call  to  their  aid 

(71) 


72 


the  bystanders  or  posse  comitatus  of  the  proper  county,  or  such 
portion  of  the  land  and  naval  forces  of  the  United  States,  or  of 
the  militia,  as  may  be  necessary  to  the  performance  of  the  duty 
with  which  they  are  charged ;  and  such  warrants  shall  run  and 
be  executed  anywhere  in  the  State  or  Territory  within  which 
they  are  issued."1 

"SEC.  1989.  It  shall  be  lawful  for  the  President  of  the  United 
States,  or  such  person  as  he  may  empower  for  that  purpose,  to 
employ  such  part  of  the  land  or  naval  forces  of  the  United  States, 
or  of  the  militia,  as  may  be  necessary  to  aid  in  the  execution  of 
judicial  process  issued  under  any  of  the  preceding  provisions,  or 
as  shall  be  necessary  to  prevent  the  violation  and  enforce  the  due 
execution  of  the  provisions  of  this  title. " 

"SEC.  1991.  Every  person  in  the  military  or  civil  service  in  the 
Territory  of  New  Mexico  shall  aid  in  the  enforcement  of  the  pre- 
ceding section  (abolishing  peonage)." 

INDIANS. 

' '  SEC.  2118.  Every  person  who  makes  a  settlement  on  any  lands 
belonging,  secured,  or  granted  by  treaty  with  the  United  States 

1  Under  section  1983  of  the  Revised  Statutes  the  circuit  courts  of  the  United  States  and 
the  district  courts  of  the  Territories,  "from  time  to  time,  shall  increase  the  number  of 
commissioners,  so  as  to  afford  a  s needy  and  convenient  means  for  the  arrest  and  exami- 
nation of  persons  charged  with  the  crimes  referred  to  in  the  preceding  section  ( /.  >-., 
those  specified  i  11  chapter  7  of  the  title  "Crimes  "  | ;  and  such  commissioners  are  authorized 
and  required  to  exercise  all  the  powers  and  duties  conferred  on  them  herein  with  regard 
to  such  offenses  in  like  manner  as  they  are  antliori/.ed  by  law  to  exercise  with  repaid  to 
other  offenses  against  the  laws  of  the  United  States  " 

By  the  act  of  February  8,  1891  (28  Stats.,  30),  sections  6506,6511-5615,  and  5520-5523, 
of  chapter  7  of  the  title  "Crimes,"  relating  to  crimes  against  the  "elective  franchise,'1 
were  repealed,  leaving  in  force — 

1.  Sections  5507-5600,  prohibiting  the  intimidation  of  voters  by  bribery  or  threats, 
and  conspiracies  to  injure,  or  intimidate  citi/ens  in  the  exercise  of  civil  rights,  and  other 
crimes  committed  wliile  violating  these  provisions. 

2.  Section  5510,  prohibiting  the  depriving,  under  color  of  State  laws,  etc.,  inhabitants 
of  civil  rights  on  account  of  such  inhabitants  being  aliens  or  by  reason  of  their  culm  or 
race. 

3.  Sections  551C  and  5517,  in  regard  to  obstructing  the  execution  of  process  in  "civil 
rights"  cases,  under  sections  1984  and  1985,  Revised  Statutes;  and  marshal  or  deputy 
marshal  refusing  to  receive  warrant  under  the  latter  section  or  failing  or  neglecting  to 
execute  the  same. 

4.  Sections  5518-5519,  prohibiting  conspiracies  to  prevent  the  accepting  or  holding 
office  under  the  United  States  or  depriving  persons  of  the  equal  protection  of  the  laws. 

5.  Sections  5524-5525,  prohibiting  kidnaping  or  enticing  persons  on  board  vessels 
with  intent  that  such  persons  are  to  be  held  or  sold  into  slavery  and  knowingly  receiving 
such  persons  on  vessels. 

6.  Sections  552C,  5527,  and  5532,  prohibiting  the  holding  or  returning  of  persons  to 
peonage  or  obstructing  the  laws  prohibiting  peonage. 

7.  Sections  5528-5532,  relative  to  officers  of  the  Army  or  Xavy  intimidating  voters, 
prescribing  their  qualification,  interfering  with  officers  of  election,  or  having  troops  at 
election  unless  their  presence  be  necessary  to  repel  armed  enemies  or  to  keep  the  peace. 


73 

to  any  Indian  tribe,  or  surveys  or  attempts  to  survey  such  lands, 
or  to  designate  any  of  the  boundaries  by  marking  trees,  or  other- 
wise, is  liable  to  a  penalty  of  one  thousand  dollars.  The  Presi- 
dent may,  moreover,  take  such  measures  and  employ  such  mili- 
tary force  as  he  may  judge  necessary  to  remove  any  such  person 
from  the  lands.'' 

"SEC.  2147.  The  superintendent  of  Indian  Affairs,  and  the 
Indian  agents  and  subagents,  shall  have  authority  to  remove 
from  the  Indian  country  all  persons  found  therein  contrary  to 
law ;  and  the  President  is  authorized  to  direct  the  military  force 
to  be  employed  in  such  removal." 

"SEC.  2150.  The  military  forces  of  the  United  States  may  be 
employed  in  such  manner  and  under  such  regulations  as  the 
President  may  direct — 

' '  First.  In  the  apprehension  of  every  person  who  may  be  in  the 
Indian  country  in  violation  of  law ;  and  in  conveying  him  imme- 
diately from  the  Indian  country,  by  the  nearest  convenient  and 
safe  route,  to  the  civil  authority  of  the  Territory  or  judicial  dis- 
trict in  which  such  person  shall  be  found,  to  be  proceeded  against 
in  due  course  of  law ; 

' '  Second.  In  the  examination  and  seizure  of  stores,  packages, 
and  boats,  authorized  by  law ; 

• '  Third.  In  preventing  the  introduction  of  persons  and  prop- 
erty into  the  Indian  country  contrary  to  law ;  which  persons  and 
property  shall  be  proceeded  against  according  to  law ; 

"Fourth.  And  also  in  destroying  and  breaking  up  any  distil- 
lery for  manufacturing  ardent  spirits  set  up  or  continued  within 
the  Indian  country." 

"SEC.  2151.  No  person  apprehended  by  military  force  under  the 
preceding  section  shall  be  detained  longer  than  five  days  after 
arrest  and  before  removal.  All  officers  and  soldiers  who  may 
have  any  such  person  in  custody  shall  treat  him  with  all  the 
humanity  which  the  circumstances  will  permit." 

"  SEC.  2152.  The  superintendents,  agents,  and  sub-agents  shall 
endeavor  to  procure  the  arrest  and  trial  of  all  Indians  accused  of 
committing  any  crime,  offense,  or  misdemeanor,  and  of  all  other 
persons  who  may  have  committed  crimes  or  offenses  within  any 
State  or  Territory,  and  have  fled  into  the  Indian  country,  either 
by  demanding  the  same  of  the  chiefs  of  the  proper  tribe,  or  by 


74 

such  other  means  as  the  President  may  authorize.  The  Presi- 
dent may  direct  the  military  force  of  the  United  States  to  be 
employed  in  the  apprehension  of  such  Indians,  and  also  in  pre- 
venting or  terminating  hostilities  between  any  of  the  Indian 
tribes." 

THE  PUBLIC   LANDS. 

' '  SEC.  2460.  The  President  is  authorized  to  employ  so  much  of 
the  land  and  naval  forces  of  the  United  States  as  may  be  neces- 
sary effectually  to  prevent  the  felling,  cutting  down,  or  other 
destruction  of  the  timber  of  the  United  States  in  Florida,  and  to 
prevent  the  transportation  or  carrying  away  any  such  timber  as 
may  be  already  felled  or  cut  down ;  and  to  take  such  other  and 
further  measures  as  may  be  deemed  advisable  for  the  preservation 
df  the  timber  of  the  United  States  in  Florida. " 

"Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  if  any 
person  or  persons  shall,  after  the  passing  of  this  act,  take  pos- 
session of,  or  make  a  settlement  on  any  lands  ceded  or  secured 
to  the  United  States,  by  any  treaty  made  with  a  foreign  nation, 
or  by  a  cession  from  any  State  to  the  United  States,  which 
lands  shall  not  have  been  previously  sold,  ceded,  or  leased  by  the 
United  States,  or  the  claim  to  which  lands,  by  such  person  or 
persons,  shall  not  have  been  previously  recognized  and  confirmed 
by  the  United  States ;  or  if  any  person  or  persons  shall  cause 
such  lands  to  be  thus  occupied,  taken  possession  of ,  or  settled  ;  or 
shall  survey,  or  attempt  to  survey,  or  cause  to  be  surveyed,  any 
such  lands ;  or  designate  any  boundaries  thereon,  by  marking 
trees,  or  otherwise,  until  thereto  duly  authorized  by  law,  such 
offender  or  offenders  shall  forfeit  all  his  or  their  right,  title,  and 
claim,  if  any  he  hath,  or  they  have,  of  whatsoever  nature  or 
kind  the  same  shall  or  may  be,  to  the  lands  aforesaid,  which  he 
or  they  shall  have  taken  possession  of,  or  settled,  or  cause  to  be 
occupied,  taken  possession  of,  or  settled,  or  which  he  or  they 
shall  have  surveyed,  or  attempt  to  survey,  or  cause  to  be  sur- 
veyed, or  the  boundaries  thereof  he  or  they  shall  have  desig- 
nated, or  cause  to  be  designated,  by  marking  trees  or  otherwise. 
And  it  shall  moreover  be  lawful  for  the  President  of  the  United 
States  to  direct  the  marshal,  or  officer  acting  as  marshal,  in 
the  manner  hereinafter  directed,  and  also  to  take  such  other 


75 

measures,  and  to  employ  such  military  force  as  he  may  judge 
necessary  and  proper,  to  remove  from  lands  ceded  or  secured  to 
the  United  States  by  treaty  or  cession  as  aforesaid  any  person  or 
persons  who  snail  hereafter  take  possession  of  the  same,  or  make, 
or  attempt  to  make,  a  settlement  thereon,  until  thereunto  author- 
ized by  law.  And  every  right,  title,  or  claim  forfeited  under 
this  act  shall  be  taken  and  deemed  to  be  vested  in  the  United 
States,  without  any  other  or  further  proceedings :  Provided,  That 
nothing  herein  contained  shall  be  construed  to  affect  the  right, 
title,  or  claim  of  any  person  to  lands  in  the  Territories  of  Orleans 
or  Louisiana  before  the  boards  of  commissioners  established  by 
the  act  entitled  '  An  act  for  ascertaining  and  adjusting  the  titles 
and  claims  to  land  within  the  Territory  of  Orleans  and  the  Dis- 
trict of  Louisiana, '  shall  have  made  their  reports  and  the  decision 
of  Congress  been  had  thereon."  (Section  1  of  an  act  approved 
March  3,  1807,  perpetuated  by  section  5596,  Revised  Statutes. ) 

THE   PUBLIC   HEALTH. 

"SEC.  4792.  The  quarantines  and  other  restraints  established 
by  the  health  laws  of  any  State  respecting  any  vessels  arriving 
in,  or  bound  to,  any  port  or  district  thereof,  shall  be  duly  ob- 
served by  the  officers  of  the  customs  revenue  of  the  United 
States,  by  the  masters  and  crews  of  the  several  revenue  cutters, 
and  by  the  military  officers  commanding  in  any  fort  or  station 
upon  the  seacoast ;  and  all  such  officers  of  the  United  States  shall 
faithfully  aid  in  the  execution  of  such  quarantines  and  health 
laws,  according  to  their  respective  powers  and  within  their 
respective  precincts,  and  as  they  shall  be  directed,  from  time  to 
time,  by  the  Secretary  of  the  Treasury."  *  *  * 

EXTRADITION. 

SEC.  5275.  Whenever  any  person  is  delivered  by  any  foreign 
government  to  an  agent  of  the  United  States  for  the  purpose  of 
being  brought  within  the  United  States  and  tried  for  any  crime 
of  which  he  is  duly  accused,  the  President  shall  have  power  to 
take  all  necessary  measures  for  the  transportation  and  safe- 
keeping of  such  accused  person,  and  for  his  security  against 
lawless  violence,  until  the  final  conclusion  of  his  trial  for  the 
crimes  or  offenses  specified  in  the  warrant  of  extradition,  and 
until  his  final  discharge  from  custody  or  imprisonment  for  or  on 


76 

account  of  such  crimes  or  offenses,  and  for  a  reasonable  time 
thereafter,  and  may  employ  such  portion  of  the  land  or  naval 
forces  of  the  United  States,  or  of  the  militia  thereof,  as  may  be 
necessary  for  the  safe-keeping  and  protection  of  the  accused." 

NEUTRALITY. 

"SEC.  5286.  Every  person  who,  within  the  territory  or  juris 
diction  of  the  United  States,  begins  or  sets  on  foot,  or  provides 
or  prepares  the  means  for,  any  military  expedition  or  enterprise, 
to'  be  carried  on  from  thence  against  the  territory  or  dominions 
of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or  people 
with  whom  the  United  States  are  at  peace,  shall  be  deemed  guilty 
of  a  high  misdemeanor,  and  shall  be  fined  not  exceeding  three 
thousand  dollars  and  imprisoned  not  more  than  three  years." 

' '  SEC.  5287  *  *  *  In  every  case  in  which  a  vessel  is  fitted 
out  and  armed,  or  attempted  to  be  fitted  out  and  armed,  or  in 
which  the  force  of  any  vessel  of  war,  cruiser,  or  other  armed 
vessel  is  increased  or  augmented,  or  in  which  any  military  expe- 
dition or  enterprise  is  begun  or  set  on  foot,  contrary  to  the  pro- 
visions and  prohibitions  of  this  title ;  and  in  every  case  of  the 
capture  of  a  vessel  within  the  jurisdiction  or  protection  of  the 
United  States  as  before  defined ;  and  in  every  case  in  which  any 
process  issuing  out  of  any  court  of  the  United  States  is  disobeyed 
or  resisted  by  any  person  having  the  custody  of  any  vessef  of 
war,  cruiser,  or  other  armed  vessel  of  any  foreign  prince  or 
state,  or  of  any  colony,  district,  or  people,  or  of  any  subjects  or 
citizens  of  any  foreign  prince  or  state,  or  of  any  colony,  district, 
or  people,  it  shall  be  lawful  for  the  President,  or  such  other 
person  as  he  shall  have  empowered  for  that  purpose,  to  employ 
such  part  of  the  land  or  naval  forces  of  the  United  States  or  of 
the  militia  thereof  for.  the  purpose  of  taking  possession  of  and 
detaining  any  such  vessel,  with  her  prizes,  if  any,  in  order  to 
the  execution  of  the  prohibitions  and  penalties  of  this  title,  and 
to  the  restoring  of  such  prizes  in  the  cases  in  which  restoration 
shall  be  adjudged,  and  also  for  the  purpose  of  preventing  the 
carrying  on  of  any  such  expedition  or  enterprise  from  the  terri- 
tories or  jurisdiction  of  the  United  States  against  the  territories 
or  dominions  of  any  foreign  prince  or  state,  or  of  any  colony, 
district,  or  people  with  whom  the  United  States  are  at  peace." 


77 

' '  SEC.  5288.  It  shall  be  lawful  for  the  President,  or  such  person 
as  li<-  shall  empower  for  that  purpose,  to  employ  such  part  of 
the  land  or  naval  forces  of  the  United  States,  or  of  the  militia 
thereof,  as  shall  be  necessary  to  compel  any  foreign  vessel  to 
depart  the  United  States  in  all  cases  in  which,  by  the  laws  of 
nations  or  the  treaties  of  the  United  States,  she  ought  not  to 
remain  within  the  United  States." 

INSURRECTION. 

"SEC.  5297.  In  case  of  an  insurrection  in  any  State  against 
the  government  thereof,  it  shall  be  lawful  for  the  President,  on 
application  of  the  legislature  of  such  State,  or  of  the  executive, 
when  the  legislature  can  not  be  convened,  to  call  forth  such 
number  of  the  militia  of  any  other  State  or  States,  which  may 
be  applied  for,  as  he  deems  sufficient  to  suppress  such  insurrec- 
tion; or,  on  like  application,  to  employ,  for  the  same  purposes, 
such  part  of  the  land  or  naval  forces  of  the  United  States  as  he 
deems  necessary." 

"SEC.  5298.  Whenever,  by  reason  of  unlawful  obstructions, 
combinations,  or  assemblages  of  persons,  or  rebellion  against  the 
authority  of  the  government  of  the  United  States,  it  shall  be- 
come1 impracticable,  in  the  judgment  of  the  President,  to  enforce, 
by  the  ordinary  course  of  judicial  proceedings,  the  laws  of  the 
United  States  within  any  State  or  Territory,  it  shall  be  lawful 
for  the  President  to  call  forth  the  militia  of  any  or  all  the  States, 
and  to  employ  such  parts  of  the  land  and  naval  forces  of  the 
United  States,  as  he  may  deem  necessary  to  enforce  the  faithful 
execution  of  the  laws  of  the  United  States,  or  to  suppress  such 
rebellion,  in  whatever  State  or  Territory  thereof  the  laws  of  the 
United  States  may  be  forcibly  opposed,  or  the  execution  thereof 
forcibly  obstructed." 

"SEC.  5299.  Whenever  insurrection,  domestic  violence,  un- 
lawful combinations,  or  conspiracies  in  any  State  so  obstructs  or 
hinders  the  execution  of  the  laws  thereof,  and  of  the  United 
States,  as  to  deprive  any  portion  or  class  of  the  people  of  such 
State  of  any  of  the  rights,  privileges,  or  immunities,  or  protec- 
tion, named  in  the  Constitution  and  secured  by  the  laws  for  the 
protection  of  such  rights,  privileges,  or  immunities,  and  the  con- 
stituted authorities  of  such  State  are  unable  to  protect,  or,  from 
any  cause,  fail  in  or  refuse  protection  of  the  people  in  such 


78 

rights,  such  facts  shall  be  deemed  a  denial  by  such  State  of  the 
equal  protection  of  the  laws  to  which  they  are  entitled  under  the 
Constitution  of  the  United  States ;  and  in  all  such  cases,  or  when- 
ever any  such  insurrection,  violence,  unlawful  combination,  or 
conspiracy  opposes  or  obstructs  the  laws  of  the  United  States,  or 
the  due  execution  thereof,  or  impedes  or  obstructs  the  due  course 
of  justice  under  the  same,  it  shall  be  lawful  for  the  President, 
and  it  shall  be  his  duty,  to  take  such  measures,  by  the  employ- 
ment of  the  militia  or  the  land  and  naval  forces  of  the  United 
States,  or  of  either,  or  by  other  means,  as  he  may  deem  neces- 
sary, for  the  suppression  of  such  insurrection,  domestic  violence, 
or  combinations."1 

Among  the  laws  to  be  enforced  under  sections  5298  and  5299 
are  the  following : 

(1)  Section  3995,  Revised  Statutes,  which  prohibits  the  ob- 
structing or  retarding  the  passage  of  the  mail,  and  all  other  laws 
relating  to  the  carrying  of  the  mails. 

(2)  The  following  sections  of  an  act  approved  July  2,  1890, 
entitled: 

"AN  ACT  to  protect  trade  and  commerce  against  unlawful  re- 
straints and  monopolies. 

"  SEC.  1.  Every  contract,  combination  in  the  form  of  trust  or 
otherwise,  or  conspiracy,  in  restraint  of  trade  or  commerce 
among  the  several  States,  or  with  foreign  nations,  is  hereby 
declared  to  be  illegal. 

"Every  person  who  shall  make  any  such  contract  or  engage 
in  any  such  combination  or  conspiracy  shall  be  deemed  guilty  of 
a  misdemeanor,  and,  on  conviction  thereof,  shall  be  punished  by 
fine  not  exceeding  five  thousand  dollars,  or  by  imprisonment  not 
exceeding  one  year,  or  by  both  said  punishments,  in  the  discre- 
tion of  the  court." 

' '  SEC.  3.  Every  contract,  combination  in  form  of  trust  or  other- 
wise, or  conspiracy,  in  restraint  of  trade  or  commerce  in  any 
Territory  of  the  United  States,  or  of  the  District  of  Columbia,  or 
in  restraint  of  trade  or  commerce  between  any  such  Territory 
and  another,  or  between  any  such  Territory  or  Territories  and 
any  State  or  States  or  the  District  of  Columbia,  or  with  foreign 


iSee  United  States v.  Cruikshank,  92  U.  S.,  542;  Virginia  v.  Rives,  100  U.  S.,  313  ; 
United  States  c.  Harris,  106  U.  S.,  629,  G39  ;  Oivil  Eights  Cases,  109  U.  S.,  3,  11  ;  Bald- 
win v.  Franks,  120  U.  S.,  692,  693. 


79 

nations,  or  between  the  District  of  Columbia  and  any  State  or 
States  or  foreign  nations,  is  hereby  declared  illegal. 

"Every  person  who  shall  make  any  such  contract  or  engage  in 
any  such  combination  or  conspiracy  shall  be  deemed  guilty  of  a 
misdemeanor,  and,  on  conviction  thereof,  shall  be  punished  by 
fine  not  exceeding  five  thousand  dollars,  or  by  imprisonment  not 
exceeding  one  year,  or  by  both  said  punishments,  in  the  discre- 
tion of  the  court, " 

(3)  The  following  section  of  an  act  approved  July  2,  1864, 
entitled : 

'  'Ax  ACT  granting  lands  to  aid  in  the  construction  of  a  railroad 
and  telegraph  line  from  Lake  Superior  to  Puget  Sound,  on 
the  Pacific  coast,  by  the  Northern  route. 

- '  SEC.  11.  And  be  it  further  enacted,  That  said  Northern  Pacific 
Railroad,  or  any  part  thereof,  shall  be  a  post  route  and  a  military 
road,  subject  to  the  use  of  the  United  States  for  postal,  military, 
naval,  and  all  other  Government  service,  and  also  subject  to  such 
regulations  as  Congress  may  impose  restricting  the  charges  for 
such  Government  transportation. " 

(4)  The  following  section  of  an  act  approved  July  1,  1862,  enti- 
tled: 

"Ax  ACT  to  aid  in  the  construction  of  a  railroad  and  telegraph 
line  from  the  Missouri  River  to  the  Pacific  Ocean,  and  to 
secure  to  the  Government  the  use  of  the  same  for  postal, 
military,  and  other  purposes.  [The  Union  and  Central 
Pacific  Railway  Companies.  ] 

"SEC.  6.  And  be  it  further  enacted,  That  the  grants  aforesaid 
are  made  upon  condition  that  said  company  shall  pay  said  bonds 
at  maturity,  and  shall  keep  said  railroad  and  telegraph  line  in 
repair  and  use,  and  shall  at  all  times  transmit  dispatches  over 
said  telegraph  line  and  transport  mails,  troops,  and  munitions  of 
war,  supplies,  and  public  stores  upon  said  railroad  for  the  Gov- 
ernment, whenever  required  to  do  so  by  any  department  thereof, 
and  that  the  Government  shall  at  all  times  have  the  preference 
in  the  use  of  the  same  for  all  the  purposes  aforesaid. "  *  *  * 

(5)  The  following  sections  of  an  act  approved  July  27,  1866, 
entitled : 

"Ax  ACT  granting  lands  to  aid  in  the  construction  of  a  railroad 
and  telegraph  line  from  the  States  of  Missouri  and  Arkansas 
to  the  Pacific  Coast. 

"SEC.  11.  And  belt  further  enacted,  That  said  Atlantic  and 
Pacific  Railroad,  or  any  part  thereof,  shall  be  a  post  route  and 


80 

military  road,  subject  to  the  use  of  the  United  States  for  postal, 
military,  naval,  and  all  other  Government  service,  and  also  sub- 
ject to  such  regulations  as  Congress  may  impose  restricting  the 
charges  for  such  Government  transportation." 

"SEC.  18.  And  be  it  further  enacted,  That  the  Southern  Pacific 
Railroad,  a  company  incorporated  under  the  laws  of  the  Stat«'  <>l 
California,  is  hereby  authorized  to  connect  with  the  said  Atlantic 
and  Pacific  Railroad,  formed  under  this  act,  at  such  point  near 
the  boundary  line  of  the  State  of  California,  as  they  shall  deem 
most  suitable  for  a  railroad  line  to  San  Francisco,  and  shall  have 
a  uniform  gauge  and  rate  of  freight  or  fare  with  said  road ;  and 
in  consideration  thereof,  to  aid  in  its  construction,  shall  have 
similar  grants  of  land,  subject  to  all  the  conditions  and  limita- 
tions herein  provided,  and  shall  be  required  to  construct  its  road 
on  the  like  regulations,  as  to  time  and  manner,  with  the  Atlantic 
and  Pacific  Railroad  herein  provided  for. " 

"SEC.  5316.-  It  shall  be  unlawful  to  take  any  vessel  or  cargo 
detained  under  the  preceding  section  [sec.  5315]  from  the  custody 
of  the  proper  officers  of  the  customs,  unless  by  process  of  some 
court  of  the  United  States ;  and  in  case  of  any  attempt  otherwise 
to  take  such  vessel  or  cargo  by  any  force,  or  combination,  or 
assemblage  of  persons,  too  great  to  be  overcome  by  the  officers  of 
the  customs,  the  President,  or  such  person  as  he  shall  have  em- 
powered for  that  purpose,  may  employ  such  part  of  the  Army  or 
Navy  or  militia  of  the  United  States,  or  such  force  of  the  citizen 
volunteers,  as  may  be  necessary,  to  prevent  the  removal  of  such 
vessel  or  cargo,  and  to  protect  the  officers  of  the  customs  in 
retaining  the  custody  thereof." 

GUANO  ISLANDS. 

"SEC.  5577.  The  President  is  authorized,  at  his  discretion,  to 
employ  the  land  and  naval  forces  of  the  United  States  to  protect 
the  rights  of  a  discoverer  (of  a  guano  island),  or  of  his  widow, 
heir,  executor,  administrator,  or  assigns." 

488.  Officers  of  the  Army  will  not  permit  troops  under  their 
command  to  be  used  to  aid  the  civil  authorities  as  a  posse  com- 
itatus,  or  in  execution  of  the  laws,  except  as  provided  in  the 
foregoing  paragraph. 


81 

4x'.».  If  time  will  admit,  applications  for  the  use  of  troops  for 
such  purposes  must  be  forwarded,  with  statements  of  all  mate- 
rial facts,  for  the  consideration  and  action  of  the  President ;  but 
in  case  of  sudden  and  unexpected  invasion,  insurrection,  or  riot, 
endangering  the  public  property  of  the  United  States,  or  in  case 
of  attempted  or  threatened  robbery  or  interruption  of  the  United 
States  mails,  or  other  equivalent  emergency  so  imminent  as  to 
rerder  it  dangerous  to  await  instructions  requested  through  the 
speediest  means  of  communication,  an  officer  of  the  Army  may 
take  such  action  before  the  receipt  of  instructions  as  the  cir- 
cumstances of  the  case  and  the  law  under  which  he  is  acting 
may  justify,  and  will  promptly  report  his  action  and  the  circum- 
stances requiring  it  to  the  Adjutant  General  of  the  Army  by 
telegraph,  if  possible,  for  the  information  of  the  President. 


16796 6 


APPENDIX   C. 

[Governor   Altgeld's   protest   against   the    use    of   United.  States 
troops  in  Illinois.] 


EXECUTIVE  OFFICE, 
Stale  of  Illinois,  July  o,  [1S04.] 
Hon.  GROVER  CLEVELAND, 

President  of  the  United  States,  Washington,  D.  C. 

DEAR  SIR  :  I  ain  advised  that  you  have  ordered  Federal  troops 
to  go  into  service  in  the  State  of  Illinois.  Surely  the  facts  have 
not  been  correctly  presented  to  you  in  this  case,  or  you  would 
not  have  taken  this  step,  for  it  is  entirely  unnecessary,  and,  it 
seems  to  me,  unjustifiable.  Waiving  all  questions  of  courtesy, 
I  will  say  that  the  State  of  Illinois  is  not  only  able  to  take  care 
of  itself,  but  it  stands  ready  to-day  to  furnish  the  Federal  Gov- 
ernment any  assistance  it  may  need  elsewhere. 

Our  military  force  is  ample,  and  consists  of  as  good  soldiers  as 
can  be  found  in  the  country.  They  have  been  ordered  out 
promptly  whenever  and  wherever  they  were  needed.  We  have 
.stationed  in  Chicago  alone  three  regiments  of  infantry,  one  bat- 
tery, and  one  troop  of  cavalry,  and  no  better  soldiers  can  be  found. 
They  have  been  ready  every  moment  to  go,  and  have  been  and 
are  now  eager  to  go  into  service.  But  they  have  not  been  ordered 
out,  because  nobody  in  Cook  County,  whether  official  or  private 
citizen,  asked  to  have  their  assistance,  or  even  intimated  in  any 
way  that  their  assistance  was  desired  or  necessary. 

So  far  as  I  have  been  advised  the  local  officials  have  been  able 
to  handle  the  situation.  But  if  any  assistance  were  needed,  the 
State  stood  ready  to  furnish  100  men  for  every  man  required,  and 
stood  ready  to  do  so  at  a  moment's  notice.  Notwithstanding 
these  facts,  the  Federal  Government  has  been  applied  to  by  men 
who  had  political  and  selfish  motives  for  wanting  to  ignore  the 
State  government.  We  have  j  ust  gone  through  a  long  coal  strike, 
more  extensive  here  than  in  any  other  State,  because  our  soft- 
coal  field  is  larger  than  that  of  any  other  State ;  we  have  not  had 
ten  days  of  the  railroad  strike,  and  we  have  promptly  furnished 
military  aid  wherever  the  local  officials  needed  it. 

(S3) 


84 

In  two  instances  the  United  States  marshal  for  the  southern 
district  of  Illinois  applied  for  assistance  to  enable  him  to  enforce 
the  processes  of  the  United  States  court,  and  troops  were  promptly 
furnished  him  and  he  was  assisted  in  every  way  he  desired.  The 
law  has  been  thoroughly  executed,  and  every  man  guilty  of  vio- 
lating it  during  the  strike  has  been  brought  to  justice.  If  the 
marshal  for  the  northern  district  of  Illinois  or  the  authorities  of 
Cook  County  needed  military  assistance,  they  had  but  to  ask  for 
it  in  order  to  get  it  from  the  State. 

At  present  some  of  our  railroads  are  paralyzed,  not  by  reason 
of  obstructions,  but  because  they  can  not  get  men  to  operate 
their  trains.  For  some  reason  they  are  anxious  to  keep  this  fact 
from  the  public,  and  for  this  purpose  are  making  an  outcry  about 
obstructions  in  order  to  divert  attention. 

I  will  cite  you  two  examples  which  illustrate  the  situation. 
Some  days  ago  I  was  advised  that  the  business  of  one  of  our  rail- 
roads was  obstructed  at  two  railway  centers — that  there  was  a 
condition  bordering  on  anarchy  there,  and  I  was  asked  to  furnish 
protection  so  as  to  enable  the  employees  of  the  road  to  operate 
the  trains.  Troops  were  promptly  ordered  to  both  points.  Then 
it  transpired  that  the  company  had  not  sufficient  men  on  its  line 
to  operate  one  train.  All  the  old  hands  were  orderly  but  re- 
fused to  go.  The  company  had  large  shops  in  which  worked  a 
number  of  men  who  did  not  belong  to  the  railway  union,  and 
who  could  run  an  engine.  They  were  appealed  to  to  run  the 
train,  but  flatly  refused.  We  were  obliged  to  hunt  up  soldiers 
who  could  run  an  engine  and  operate  a  train. 

Again,  two  days  ago,  appeals  which  were  almost  frantic,  came 
from  officials  of  another  road,  stating  that  at  an  important  point 
on  their  lines  trains  were  forcibly  obstructed,  and  that  there  was 
a  reign  of  anarchy  at  that  place  and  that  they  asked  for  protec- 
tion so  that  they  could  move  their  trains.  Troops  were  put  on 
the  ground  in  a  few  hours'  time,  when  the  officer  in  command 
telegraphed  me  that  there  was  no  trouble  and  had  been  none 
at  that  point,  but  that  the  road  seemed  to  have  no  men  to  run 
trains ;  and  the  sheriff  telegraphed  me  that  he  did  not  need  troops, 
but  would  himself  move  every  train  if  the  company  would  only 
furnish  an  engineer.  The  result  was  that  the  troops  were  there 
over  twelve  hours  before  a  single  train  was  moved,  although 
there  was  no  attempt  at  interference  by  anybody.  It  is  true  that 


85 

in  several  instances  a  road  made  efforts  to  work  a  few  green  men. 
and  a  crowd  standing  around  insulted  them  and  tried  to  drive 
them  off,  and  in  a  few  instances  they  cut  off  Pullman  sleepers 
from  the  train.  But  all  these  troubles  were  local  in  character 
and  could  easily  be  handled  by  the  State  authorities.  Illinois 
has  more  railroad  men  than  any  State  in  the  Union,  but  as  a  rule 
they  are  orderly  and  well  behaved. 

This  is  shown  by  the  fact  that  so  very  little  actual  violence  has 
bt-t'ii  committed.  Only  a  very  small  per  cent,  of  these  men  has 
been  guilty  of  any  infraction  of  the  law.  The  newspaper  ac- 
counts have  in  some  cases  been  pure  fabrications,  and  in  others 
wild  exaggeration. 

I  have  gone  thus  into  details  to  show  that  it  is  not  soldiers  that 
the  railroads  need  so  much  as  it  is  men  to  operate  trains,  and 
that  the  conditions  do  not  exist  here  which  bring  the  case  within 
the  Federal  statute,  a  statute  that  was  passed  in  1861,  and  was  in 
reality  a  war  measure.  This  statute  authorized  the  use  of 
Federal  troops  in  a  State  whenever  it  shall  be  impracticable  to 
enforce  the  laws  of  the  United  States  within  such  State  by  the 
ordinary  judicial  proceedings.  Such  a  condition  does  not  exist 
in  Illinois.  There  have  been  a  few  local  disturbances,  but  noth- 
ing that  seriously  interfered  with  the  administration  of  justice, 
or  that  could  not  be  easily  controlled  by  the  local  or  State  author- 
ities, for  the  Federal  troops  can  do  nothing  that  the  State  troops 
can  not  do. 

I  repeat  that  you  have  been  imposed  upon  in  this  matter,  but 
even  if  by  a  forced  construction  it  were  held  that  the  conditions 
here  came  within  the  letter  of  the  statute,  then  I  submit  that 
local  self-government  is  a  fundamental  principle  of  our  Constitu- 
tion. Each  community  shall  govern  itself  so  long  as  it  can  and 
is  ready  and  able  to  enforce  the  law,  and  it  is  in  harmony  with 
this  fundamental  principle  that  the  statute  authorizing  the  Presi- 
dent to  send  troops  into  States  must  be  construed.  Especially  is 
this  so  in  matters  relating  to  the  exercise  of  the  police  power  and 
the  preservation  of  law  and  order. 

To  absolutely  ignore  a  local  government  in  matters  of  this  kind, 
when  the  local  government  is  ready  to  furnish  any  assistance 
needed,  and  is  amply  able  to  enforce  the  law,  not  only  insults  the 
people  of  the  State  by  imputing  to  them  an  inability  to  govern 
themselves  or  unwillingness  to  enforce  the  law,  but  is  in  violation 


86 

of  a  basic  principle  of  our  institutions.  The  question  of  Federal 
supremacy  is  in  no  way  involved.  No  one  disputes  it  for  a 
moment,  but,  under  our  Constitution,  Federal  supremacy  and 
local  self-government  must  go  hand  in  hand,  and  to  ignore  the 
latter  is  to  do  violence  to  the  Constitution. 

As  governor  of  the  State  of  Illinois,  I  protest  against  this,  and 
ask  the  immediate  withdrawal  of  the  Federal  troops  from  active 
duty  in  this  State.  Should  the  situation  at  any  time  get  so  serious 
that  we  cannot  control  it  with  the  State  forces,  we  will  promptly 
and  freely  ask  for  Federal  assistance,  but  until  such  time  I  pro- 
test with  all  due  deference  against  this  uncalled-for  reflection 
upon  our  people,  and  again  ask  the  immediate  withdrawal  of 
these  troops. 

I  have  the  honor  to  be  yours,  respectfully, 

JOHN  P.  ALTGELD, 
Governor  of  Illinois. 


YC  030C8 


